From: Matt Blaze <mab@crypto.com>
Date: Mon, 11 Mar 1996 06:21:29 +0800
To: cypherpunks@toad.com
Subject: Re: Lawz to be.
In-Reply-To: <960306193119.20205a93@hobbes.orl.mmc.com>
Message-ID: <199603070255.VAA11866@crypto.com>
MIME-Version: 1.0
Content-Type: text/plain


> 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.
> 
I suppose you could parse it that way if you really wanted to, but it seems
to me that the obvious meaning of this rather tortured language:
  "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..."
is "...willfully endeavoring to obstruct by means of encryption the
communication to an investigative or law enforcement officer information that
is in furtherance of a felony..."

I think no reasonable person (judge, jury or prosecutor) would interpret
it any other way.  Fortunately, the law is not a program that gets run on a
computer.  People have to interpret it.  In the case of this section, the
awkward wording is an artificat of several iterations of narrowing it from
what was originally a rather broad crime (as it still is in the House bill).
I would rather have the awkward (but still clear) wording than a broader crime.
As it stands, several lawyers whose judgement I trust have told me that this
provision is worded narrowly enough to apply only to people who can already
be conviceted of the underlying crime and who can be proven to have used 
encryption for the SOLE purpose of thwarting law enforcement.  I don't like
this new crime (since it still stigmatizes encryption as being something
criminals use), but I can probably live with it.

> Thought the gotcha was down in the part about the Secretary of Commerce. 
> 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..."). The puzzler is the requirement that a comperable 
> 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...

No.  Right now crypto exports fall under the State Department (which is
in the business of saying "no") unless they decide otherwise, in which case
it goes to the Commerce department (which is in the business of saying "yes").
Under the bill, for non-mass-market software and hardware, the Commerce
department must issue a license if equal strength crypto is already available
outside the country.  But the biggest win is that, under the bill, you don't
need a license from anyone in the case of mass-market (or public domain)
software (or hardware bundled with mass-market crypto software).  You
can just export it.

See the analysis of the bill in http://www.vtw.org.

Personally, on balance, I think the bill, as written, is a big
enough step forward to be worth supporting.

-matt