From: "Timothy C. May" <tcmay@got.net>
Date: Thu, 7 Nov 1996 21:07:56 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: Why is cryptoanarchy irreversible?
In-Reply-To: <v02140b02aea834cd835d@[192.0.2.1]>
Message-ID: <v03007802aea86e3be000@[207.167.93.63]>
MIME-Version: 1.0
Content-Type: text/plain


At 5:16 PM -0800 11/7/96, Peter Hendrickson wrote:

>While the term "police state" is not well defined, I do not believe it
>applies to what I am describing.  (There is a risk that it could develop,
>however.)
>
>Laws forbidding the use of cryptography have ominous free speech
>implications as we would be attempting to outlaw concealed meaning.
>Concealed meaning can be pretty well concealed and that makes
>for difficult and dangerous legal questions.

If the only means of detection is raiding homes to inspect them for
contraband--something not even done during the height of the anti-drug
hysteria, at least not on a regular basis--then I stand by my comment that
stopping private use of cryptography requires a police state such as the
world has not yet seen.

>On the other hand, the action of running a program which uses forbidden
>crypto systems is pretty unambiguous and could be effectively isolated
>from other kinds of speech.

Oh? How? If the output of such a program looks like quantization or Johnson
noise in a recording, then how could this form of "speech" be effectively
isolated?


>Many kinds of speech are already illegal.  For instance, I am not allowed
>to copy somebody else's speech because it would violate copyright laws.
>I am not allowed to break verbal contracts.  In essence, I am punished
>later for the something I said if I am forced to keep my word.  But,
>this does not constitute a police state.

Careful! Some of your examples are not examples of _prohibited_ speech, but
are instead examples of _actionable_ speech. The Constitution is fairly
clear that the government cannot be a filter or censor for speech.

Hence, requirements that people speak in English, or in some other language
that the government can understand, is not required. Not even in a criminal
case, as a matter of fact. (If I speak only Skansko-Bravatlian, and am the
only such speaker in the world, I cannot be compelled to study English or
even Spanish prior to a trial.)

Requiring people to speak or write in a language that is understandable to
some GS-10 at Fort Meade would appear to violate the First Amendment in a
rather serious way. As encrypted speech is really just another language
(tell me I'm wrong on this, anyone), encrypted speech appears to be fully
protected by the First Amendment, which says that Congress shall make no
law about speech, blah blah.


>What I am proposing would not require an end to fair trials or warrants
>or really any other legal customs we have.

I strongly disagree. Prosecution would involve making certain _forms_ of
speech illegal (not the same thing as the _content_ being illegal, as in
ordering the kililng of another, or treason, or shouting "Fire!"
improperly). And detection and collection of evidence would almost
certainly involve illegal searches and seizures.

>In case anybody has any doubts, and I doubt Tim does, the existence of
>a life sentence does not imply the presence of a police state.

Not ipso facto, but having people serving life sentences for speaking in an
outlawed language certainly meets my definition of a police state.

--Tim May

"The government announcement is disastrous," said Jim Bidzos,.."We warned IBM
that the National Security Agency would try to twist their technology."
[NYT, 1996-10-02]
We got computers, we're tapping phone lines, I know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1,257,787-1 | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."