From: Hal Finney <hal@rain.org>
Date: Wed, 13 Nov 1996 09:30:27 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: So how does the crypto crackdown go?
Message-ID: <199611131727.JAA10271@crypt>
MIME-Version: 1.0
Content-Type: text/plain


From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
> As Hal knows, but some newer members of the list may not, I discuss the
> possibility of a ban on strong (unescrowed) crypto at some, ahem, length
> in
>
> http://www.law.miami.edu/~froomkin/articles/clipper.htm
>
> Although the article is more than 18 months old, the law hasn't changed
> in any material way as far as I know.
>
> Bottom line: they probably can't do it under the constitution, but it's a
> closer call than it should be.

This is a very helpful and thorough analysis.  However it does not address
the possibility of a ban on the sale/distribution of strong crypto, rather
than a ban on its use.

There are several reasons why I think the former is more likely:

 - PRECEDENT FROM ITARS
   The current bans on export of encryption software limit the distribution
   of the software itself, not of encrypted messages.  Extending this ban
   to domestic distribution would imply banning distribution but not use
   of crypto software.

 - NOT A PRIVACY ISSUE
   The privacy issues would be much less relevant because it is no longer
   a matter of just what you do in the privacy of your own home.

 - OUT OF THEIR OWN MOUTHS
   The Clinton administration's original veiled warning, quoted in
   Michael's paper, denied that "every American, as a matter of right,
   is entitled to an unbreakable commercial encryption product."  Noting
   the use of "commercial" this suggests a ban on sales rather than
   use.

 - COMMERCIAL REGULATION
   Not being a lawyer, I can only speculate that the interstate commerce
   clause would give more justification for a ban on distribution than on
   use.

 - FOOT IN THE DOOR
   Conceivably such a ban, if successful, would provide new arguments for
   advancing to the second stage of a ban on usage after some time.
   The impact of the usage ban would be less due to the lack of access
   most people would have to such software, and the (arguably) demonstrated
   effectiveness of the government approved software almost everyone would
   be using by that time.

 - BIG BROTHER IS WATCHING
   We have long speculated that the government's real interest is in
   making mass surveillance more practical, with the stated concerns about
   criminals being merely a convenient cover.  Commercial restrictions
   would be consistent with such motives since they would have more
   impact on the innocent many than the motivated few.

A ban on sales and distribution could still be opposed on First Amendment
grounds, especially if it becomes established that software is speech.
Still there are many restrictions possible on commercial speech so even
a favorable precedent in this area would not preclude some regulation of
software distribution.

We could also argue that such a ban is de facto equivalent to restrictions
on use, since most people would not then have access to privacy preserving
software.  In that case the many excellent arguments which Michael brings
forward to oppose such restrictions would be relevant.

And what would be the implications for freeware crypto?  Could
distribution of such software be subject to regulation in the same way
as commercial programs?  Then there are the issues relating to speech
about crypto which are currently being litigated.  Presumably domestic
restrictions on such speech would have to reach a much higher standard
of demonstrated need than restrictions on export.

For these reasons I think that domestic regulations on the sales
and distribution of strong crypto would not be a sure thing for the
government, but would be a lot easier for them than restricting use.
This suggests that it is a likely direction for them to take after the
next terrorist attack.

Hal