From: jim bell <jimbell@pacifier.com>
Date: Sun, 10 Mar 1996 14:37:55 +0800
To: Chris Townsend <townsend@smokin.fly.net>
Subject: Re: Leahy's guillotine.
Message-ID: <m0tvdtb-0008xYC@pacifier.com>
MIME-Version: 1.0
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At 11:44 PM 3/9/96 -0500, Chris Townsend wrote:

>> 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.

Well, I'll separate it for closer review:

>> 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 problem is that the original sentence (in the proposed law) is 
ambiguous.  But I think the most likely interpretation is that it is the 
"information" which is in "furtherance of a felony," and "obstructing the 
commmication" of that information is the crime they define.


>  While I agree with your 
>position, why would it *possibly* be a crime to interefere with felonious 
>communcations?

The law is POORLY worded.  Padgett Peterson noticed this yesterday, BTW, and 
commented on it on Cypherpunks.  You've stumbled on the alternate meaning 
that he complained about.  Realistically, however, I think we can probably 
agree that this meaning was not the one they intended; that's why for 
purposes of analysis I study the other meaning.

>  The lanuguage is lamentably unambiguous about the
>fact that it is the obstruction and not the information that is
>in furtherance of a felony... 

I think I disagree.  What we need, however, is an "emergency-call English 
major" who could diagram the various possibilities for us and we could 
study them separately.  There's plenty of ambiguity in this sentence; but I 
think that is absolutely intentional.  


>> 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. 

That depends on who you believe actually wears 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...

Well, I invite you to try to construct an interpretation of the sentence in 
as many ways as you can imagine.  I think you'll discover that it is 
practically intended to mislead.


>> 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...

Justa sec... I think you've forgotten that merely running an anonymous 
encrypted remailer could be considered "willful obstruction."  Now, if the 
communication wasn't "in furtherance to a felony" then it wouldn't be 
criminal (it would be a LEGAL "willful obstruction, right?) , but then again 
the operator wouldn't know that, would he?  

Which brings us to yet another ambiguity:  The operator of an anonymous 
encrypted remailer wouldn't know that any given packet was "in furtherance 
of a felony" but he MIGHT be absolutely aware that any one of them COULD be! 
 Does this rise to the level of violating the law?  If not, why not?


>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...            


Who, in this case, is "the enemy"?  As far as I can see, "the enemy" are the 
people who wrote this section of the bill.

While it's been a few decades since I last diagrammed a sentence, I will 
start by putting parentheses around sections of this sentence to separate it 
into what I believe is its "intended" meaning.  


>> 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 challenge anyone to re-write this section to:

1.  Achieve what he believes to be a "reasonable" result and

2.  Avoids the criticisms that I've previously mentioned WRT this portion of
the 
bill.


Also, I think anyone who supports this kind of section should be able to 
give me a few examples of crimes whose investigation has (or could be) 
thwarted in a way that would violate this section.  I've said it before and 
I'll say it again:  The average citizen is essentially never the victim of a 
crime of this type.  For whom, then, is this law written?  I think it's 
written for the benefit of the politicians alone.  They want to live.

Jim Bell

jimbell@pacifier.com
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