From: Chris Townsend <townsend@smokin.fly.net>
Date: Mon, 11 Mar 1996 08:16:33 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: Leahy's guillotine.
In-Reply-To: <m0tvZUN-0008zCC@pacifier.com>
Message-ID: <Pine.LNX.3.91.960309231319.18047D-100000@smokin.fly.net>
MIME-Version: 1.0
Content-Type: text/plain




On Sat, 9 Mar 1996, jim bell wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
> 
> To:  All
> 
> 
> Recent Senate crypto bill
>  Mr. LEAHY (for himself, Mr. BURNS, and MRS. MURRAY) introduced the
>   following bill; which was read twice and referred to the Committee
> 
> [stuff deleted]
> 
> 2804. Unlawful use of encryption to obstruct justice
> 
>   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...
> 
> 
> I think we may reasonably assume that this section was very carefully 
> written, and thus it may contain meanings (or avoid containing meanings) 
> that only a careful reading will disclose.  
> 
> Contrary to some other sloppy  interpretations that I've seen here recently 
> from organizations that ought to know better, I see nothing in this section 
> that limits the prosecution on this law to people who are actually 
> participating in a crime.  This distinction is vital.   While the sentence 
> is not diagrammed, it appears to be the INFORMATION which is in "furtherance 
> to a felony," not the "obstructing" of that communication.  The implication 
> is that it is not necessary that a person know the exact information 
> involved or be able to decrypt it; he needs only be deliberately using 
> encryption to prevent the knowledge of what the information is about, or its 
> routing.  (As in an encrypted anonymous remailer, for instance.) 


???  Your third sentence doesn't make any sense.  While I agree with your 
position, why would it *possibly* be a crime to interefere with felonious 
communcations?  The lanuguage is lamentably unambiguous about the
fact that it is the obstruction and not the information that is
in furtherance of a felony... 

 
> Moreover, the errors among the organizations that are now apparently 
> declaring their general support for this amendment are apparently based on a 
> false view of the effects of this section.  
> 
> Aside from this, it isn't clear what is meant by the phrase, "obstruct, 
> impede, or prevent the communication of information in furtherance to a 
> felony."    An obvious problem is this:  How will they know if the use of 
> encryption actually had that effect?  If it was UNsuccessful, then obviously 
> that encryption did not prevent the government from obtaining information.  
> If it was SUCCESSFUL, then how is the government to know that the 
> communication in question was "in furtherance to a felony"?  Even if they 
> can prove the felony by other means, how can they show that the 
> communication actually had anything to do with the crime?

It is quite conceivable that an unsuccessful attempt to obstruct
justice might cause additional trouble, time, and expense to the
guys in the white hats.  Note that the language does not distinguish
between successful and unsuccessful attempts...though you're right
that it seems that only unsuccessful attempts could be verified...
the rest is clouded by your assumption that the information, rather
than the obstruction, must be in furtherance of the crime...


> 
> Another problem:  Encryption, per se, does not "prevent the communication of 
> information."  What it does, of course, is to prevent the UNDERSTANDING of 
> that information.  Do the writers of this bill intend to use this law to 
> punish the LATTER effect, rather than the former? 
> 
> Further, how is the person to be charged to know if his use of encryption 
> had the effect of "obstruct[ing], imped[ing], or prevent[ing] the 
> communication of that information?  If he encrypts a file to his hard disk, 
> and he doesn't intentionally send the file to the cops, how is he supposed 
> to anticipate that the use of encryption had this effect?  As far as HE 
> knows, it was simply his decision to not send the file to the cops; he can't 
> be expected to know that they'll show up the next morning with a search 
> warrant and take his computer, can he?  Would his refusal to provide the 
> decrypt key constitute a violation of this section?

Probably.  That's what the word "willful" is doing in there.   Read
carefully:  it's willful obstruction, not willful encryption...

I am not a lawyer, although I play one on the net.

I agree with your position, but you're not reading as closely 
as the enemy will...            

-cpt
townsend@fly.net