From: jim bell <jimbell@pacifier.com>
Date: Thu, 7 Mar 1996 23:45:15 +0800
To: "A. Padgett Peterson P.E. Information Security" <cypherpunks@toad.com
Subject: Re: Lawz to be.
Message-ID: <m0tuhAG-0008xNC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


-----BEGIN PGP SIGNED MESSAGE-----

At 07:31 PM 3/6/96 -0500, A. Padgett Peterson P.E. Information Security wrote:
>Cut & Paste
>>  "§2804. Unlawful use of encryption to obstruct justice"    
>>   "Whoever willfully endeavors by means of encryption to obstruct,   
>...

>
>>In any case, assuming they either never made the error you noticed, or they 
>>manage to correct it before the bill becomes law, they will have just 
>>outlawed the used of encrypted remailers, because:
>
>No, what the wording seems to outlaw was the use of encryption to obstruct 
>the commission of the crime, not the investigation.  Read it again please.

The wording of the paragraph is stilted and probably poorly written, as you 
noticed and as I've acknowledged.  Nevertheless, I think my objections are 
still valid:  If they get what they want, it will be possible for the 
government to _make_ encrypted remailers guilty of a crime, under the 
hypothetical scenario I mentioned before, with minor modifications depending 
on the law's exact phrasing.  The potential problem still exists.

In my opinion, if the underlying act they are describing is really illegal, 
and they can back up their claims with evidence, they should prosecute that 
act, NOT the use of encryption.  Yet another problem is that while the use 
of encryption today is comparatively rare and you have to go out of your way 
to use it, presumably we anticipate that both hardware and software 
developments will make use of encryption routine and ignorable.  

Imagine a world in which it was as difficult to NOT use good encryption as 
it is now to use it:  The government would suddenly be able to tack on 
another charge to just about every major crime.  Is that what you really want?


>>> Suspect  they meant to say "...obstruct (etc) the investigation of a
>>>felony..."
>
>>Probably.  This section is their wish-list to Santa Claus.  It's easy to 
>>make mistakes when you're excited about something.   They're hoping you 
>>suckers will support the whole bill despite this booby-trap.  
>
>Thought the gotcha was down in the part about the Secretary of Commerce. 

Well, I disagree.  There may, indeed, be a "gotcha" THERE, too, but I don't 
think that's  the main one.


>My reading is that the secretary will still be required to grant
>approval for commercial export. Is past the part about no regulation
>inside the US (which is true now - still would be nice to see a "Congress
>shall make no law...").

This is yet another reason that I'm opposed to this bill.  The "gains" we 
supposedly get are mostly re-statements of rights we already possess, but 
which the government has tried and mostly failed to curtail.  Why should we 
reward these people for stopping their attempts to steal from us?

> The puzzler is the requirement that a com
perable 
>foreign product must exist before permission to export will be granted.
>Will this be like "comparable product" price matching in discount houses ?
>Somehow there never is one...

That's another thing to be afraid of.  We're dependant on their 
interpretation of the law, and there's no reason to believe that they'll be 
generous once they have what they want.

>ps did you mean the Thomases and Memphis ? Not aware of similar 
>   prosecution in Oklahoma. 

My recollection of the details may be in error, but the principle and the 
problem remains:  The government clearly is willing to use a tactic which 
fabricates a crime, turning the victim into the "criminal."  There is no 
reason to believe that they won't try the same thing the moment a new 
"crime" is defined of using encryption. 


>Besides my understanding was that the online
>   stuff was dropped, the conviction was for stuff sent through the mails.
>   Is that incorrect ?

Is this relevant?  I mean, have YOU ever been prosecuted for a crime before? 
 Especially one that you didn't intend to commit?  Do you know how much it 
costs to defend yourself, even before the trial?  Do you know how much a 
trial will cost you?  Did you know that you aren't reimbursed if the verdict 
is "not guilty" or the charges are dropped?  

This is called "deterrence", dammit!

Encrypted remailers aren't in it for the money.  They don't have a "legal 
budget."  They would be severely dissuaded if there was even a possibility 
that the government could decide to start harassing them.  Surely you see that!

Jim Bell
jimbell@pacifier.com

Klaatu Burada Nikto

-----BEGIN PGP SIGNATURE-----
Version: 2.6.2

iQCVAwUBMT751/qHVDBboB2dAQGZMQP/fJ7SMKwvZEZjg3KGgF1WE7jtYnetMv9+
v/4+0ezJ4GVRt0rkPX1YGjJxpQEk73d+J78zxHi87hQq8WBXRz4pNWGBGRMu0iqG
fk0N2FTXxIFivsqu0vZLW5zVYs0W9v1ZGN4jFQ3vYCMIhzP8ig8gQrATOnag1Vmu
EPUZdCnsAxw=
=1OLz
-----END PGP SIGNATURE-----