From: ph@netcom.com (Peter Hendrickson)
Date: Fri, 8 Nov 1996 00:28:03 -0800 (PST)
To: "Timothy C. May" <cypherpunks@toad.com
Subject: Re: Why is cryptoanarchy irreversible?
Message-ID: <v02140b19aea8952827f5@[192.0.2.1]>
MIME-Version: 1.0
Content-Type: text/plain


At 9:11 PM 11/7/1996, Timothy C. May wrote:
>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.

Perhaps initially, during the state of emergency declared by our heroic
and courageous President, some unfortunate abuses of authority may occur.
But, after the first 90% of the terrorists are incarcerated, we will
have the luxury of returning to an orderly legal system replete with
search warrants.

Keep in mind that the drug laws face a large number of dedicated
opponents who will go to great trouble to evade the laws.  I suspect
that these people are in the majority, although I don't know for sure.

I find it hard to believe that any sizeable number of people would
find the Four Horsemen scenario tolerable.

>> 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?

Sorry, I wasn't very clear.  What I mean is that once you've been
caught red handed with a stego program, the game is up.  That is, I think
it is possible to get ideas of who is operating illegally from interceptions.
(I may well be wrong.)  But, the actual evidence is easily collected
off your computer.  A program which performs encryption or stego is
not very ambiguous about what it is doing.

>> 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.

Under the right legal environment, and we are not far from it, none
of this matters.  The Courts can be quite liberal when they think there
is a good reason for it.  Take seating in restaurants.  If you read
the Constitution you won't find where the Federal Government is empowered
to regulate this.  The Courts decided that the Commerce Clause was
a reasonable justification.  This argument resembles the peace of God.

All the Justices have to say is that the Constitution does not specify
private speech, just public speech.  The same way it doesn't say
"assault rifle" it says "arms".  The same way it doesn't say "commercial
speech" just "speech".

The Constitution will likely be a powerful support for cryptoanarchy,
but only because I doubt widespread opposition to strong cryptography
will arise.

>> 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).

But we are not objecting to content!  We don't care what goes inside
the encryption - unless it involves extortion, murder, child pornography,
or weapons data - we care that communication has been limited.  Cryptography
is not a language because nobody can understand it but the recipient.
We simply want the recipient to share with the rest of the class - that
is an independent legal issue from persecution for one's beliefs which
is of course, and thankfully, unconstitutional your Honor.

Or how about this argument: It isn't the encrypted message that we
care about so much, your Honor.  We care that it is evidence that
the perpetrator did commit the illegal act of encrypting his
communications using military-grade technology which is now highly
illegal.

When I say it doesn't really put an end to most legal customs, I mean
that the courts do not have to behave all that capriciously to make
the law stick.  For the most part people know how not to break the
law and the people who are convicted did break it.  Other speech
rights do not immediately dissolve away.  Yes, there is a risk that
they will do so later, but the police state is not required to suppress
cryptoanarchy if there is strong public sentiment supporting it.

> And detection and collection of evidence would almost certainly involve
> illegal searches and seizures.

Not in the presence of wide public support.

Peter Hendrickson
ph@netcom.com