From: jim bell <jimbell@pacifier.com>
Date: Mon, 11 Mar 1996 04:18:25 +0800
To: Bill Stewart <stewarts@ix.netcom.com>
Subject: Re: Leahy's guillotine.
Message-ID: <m0tvqT4-00091oC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


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At 01:11 AM 3/10/96 -0800, Bill Stewart wrote:
>Leahy et al.:
>>  Whoever willfully endeavors by means of encryption to obstruct,
>>   impede, or prevent the communication of information in furtherance
>>   to a felony which may be prosecuted in a court of the United States,
>>   to an investigative or law enforcement officer shall...
>
><Exonive deleted>!  
>
>Let's look at the word "willfully".  Among other things, it implies
>knowledge; under US law, to be guilty you have to know you did something
>that you at least reasonably believe is an activity that you're not supposed
>to do.

And if the government should take the position that the mere existence of an 
anonymous encrypted remail allows for illegal use, without detection by the 
operator, then a person could easily argue that the mere willful OPERATION 
of that remailer violates the section.

>Yes, cops can send you email threatening to use your remailer for
>felonious purposes, but if you don't know they've actually done it,
>and you haven't agreed with them to provide your encryption services
>in support of their felonious action, you're not a willing participant.

I disagree.  At least, I disagree that this interpretation will be 
automatically adopted by the government thugs.

>Especially if you've got the welcome banner on your remailer page
>saying "You may not use this email encryption service for thoughtcrime,
>violations of the verbal morality act, idea laundering, anti-abortion activism,
>or other felonious or Un-American activities."  You're no more a willful 
>participant than the guy who receives an unordered package of child pornography
>mailed by a postal inspector.

Which brings up a case from the midwest which (fortunately) was overturned 
by the SC a few years ago.  Seems a person was repeatedly sent ads (in 
reality, the ads came from the government!) offering some kind of 
pornographic material.  A "long time" later, he eventually "bit" and ordered 
something.  Needless to say, this was enough to get a search warrant, and a 
prosecution.  

Question:  Despite the fact that this conviction was eventually overturned, 
don't you think the prospect of a multi-year all-out battle with the 
prosecutors would be enough to deter people from doing things that they 
believed might really be legal, but would be looked on with disfavor by 
equally-sleazy prosecutors?

Why is it that I get the impression that the people who don't see this 
provision as being so bad have no sense of reality?  Are they not aware of 
the various ways prosecutors abuse their positions?

>Now, if they make this a felony, surely conspiracy to participate in
>such activities could eventually be made illegal, and if the DemoPublicrats
>get re-elected, it probably will be some day.  But this law doesn't do that 
yet.

In other words, they're aiming the gun at you, but they don't quite yet have 
their finger on the trigger.  When, exactly, do you start worrying?

Jim Bell
jimbell@pacifier.com

Klaatu Burada Nikto
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