From: jim bell <jimbell@pacifier.com>
Date: Mon, 11 Mar 1996 04:18:11 +0800
To: Matt Blaze <cypherpunks@toad.com
Subject: Re: Lawz to be.
Message-ID: <m0tvqSz-00091kC@pacifier.com>
MIME-Version: 1.0
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At 09:55 PM 3/6/96 -0500, Matt Blaze wrote:
>> 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,

If  you acknowledge that, you are agreeing that a prosecutor could take that 
position to court, and until the Supreme Court decides he's wrong, he gets 
to harass citizens. 

> 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..."

But what, exactly, is included in that latter meaning?  Does a person who 
runs an anonymous encrypted remailer, who is fully aware that somebody could 
be using his system at any moment to break a law, classify as in violation?  
That's the  problem, I think:  The government wants to shut down the USE of 
encryption among those it decides to target, while ostensibly keeping 
encryption legal.

>I think no reasonable person (judge, jury or prosecutor) would interpret
>it any other way. 

You're just as optimistic as Weinstein.  I'm not.

> Fortunately, the law is not a program that gets run on a
>computer.  People have to interpret it. 

That's a mixed blessing.  Are you aware of the fact that in the 1930's, the 
Supreme Court ruled that a farmer growing corn and feeding it to his pigs 
was engaging in "interstate commerce" because (the court "reasoned") if he 
didn't grow the corn it would have to be brought in to the state from 
another state (or displace other usages which would, themselves, have to 
need a similar import) so he was doing "interstate commerce."

(and just a few years later, in three separate cases, they upheld the 
internment of Japanese-Americans on the west coast as a preventative 
measure...)

Ignore this all you want, but the fact is that judges are sleazy people who
will 
do exactly what they want to do regardless of how wrong it is.

> 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).

Whose fingerprints are on this portion of the bill?

>I would rather have the awkward (but still clear) wording than a broader 
crime.

I don't want any "new crimes," except possibly those that punish acts by 
government employees and officeholders.

>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.

That's not how the proposed law reads.  I realize that what you were given 
may be the "Walt Disney" version of the law, but reality will be 
dramatically different, I can assure you.  Maybe you ought to ask one of 
these lawyers if he is willing to write a legal brief describing the 
"worst-case scenario":  What a malicious prosecutor COULD do with this law 
if he so chose.  And remind him that the operators of encrypted remailers 
don't have the funds to take any appeals to the Supreme Court:  Lawyers are 
usually trained to knee-jerk assume that they can eventually get the "right" 
decision from the SC, which assumes _they_are_hired_ by a defendant who 
can afford this route.    

> I don't like
>this new crime (since it still stigmatizes encryption as being something
>criminals use), but I can probably live with it.

I cannot.   I _will_not_.

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

It sounds like you're assuming that this bill is a "take it or leave it" 
type of proposition.  I'm not.  I see no reason to come to some sort of a 
"Siskel and Ebert"-type of thumbs-up/thumbs-down decision on the whole thing.

I'll say it again:  If the only way this bill can be passed is the inclusion 
of this particular section, then that must mean that somebody "out there" 
must want that part REALLY badly.  And if they want it that badly, I want it 
gone even more!

Jim Bell
jimbell@pacifier.com
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