From: "Barry A. Dobyns" <bdobyns@clueless.com>
Date: Mon, 11 Nov 1996 11:23:36 -0800 (PST)
To: Dale Thorn <dthorn@gte.net>
Subject: Re: Legal Deffinition of Encryption?
In-Reply-To: <v02140b02aeaba1c8961f@[192.0.2.1]>
Message-ID: <32871B52.153@clueless.com>
MIME-Version: 1.0
Content-Type: text/plain


Dale Thorn wrote:
> 
> Peter Hendrickson wrote:
> > At 2:17 PM 11/9/1996, Mark M. wrote:
> > >On Sat, 9 Nov 1996, Benjamin Grosman wrote:
> > >> I have absolutely no idea: this is a very interesting problem. Not for just
> > >> compression and encryption differention legally, but also, well, ANY other
> > >> data form. If one defines a new format for saving data (i.e a new image
> > >> format), and then exports this technology from the USA, is this exportation
> > >> of munitions due to it's unknown qualities? Or what?
> 
> > > I can't define encryption, but I know it when I see it.
> 
> > They way it will be forbidden is by outlawing the execution of the
> > algorithms.  The algorithms (the secure ones anyway) are well defined
> > as is executing them.  The legal system has dealt with greater
> > ambiguities than this.
> > An analogy to the drug laws might be useful.  We don't outlaw all drugs
> > that cause you to have weird visions and to act strangely.  That would
> > be hard to define and would cover a number of legal drugs.
> > Instead, the specific chemicals are forbidden as they are discovered.
> 
> I can see how the chemical/drug thing works, and I can see how they can
> easily control Public Key (PGP) encryption, but if you are suggesting
> that they can effectively eradicate private key encryption, that would
> seem to be an impossibility.

I don't think that an alert legisator will have any problems writing
laws that cover
whatever uses of cryptography they want to outlaw.  (Finding an alert
legislator might be
more of a problem...)

Consider this:  outlawing an algorithm is very similar to protecting
it's use
as intellectual property - which is what the Patent system in the US and
most other
countries is designed to do.  The description of "illegal" algorithms
could be lifted
directly from patents (both current AND expired, or if you're
sufficiently paranoid,
even from "refused" or ungranted applications) which apply to
cryptography.  

Imagine the creation of a branch of your favorite Government, let's call
it "Big Brother," 
whose job is to monitor patent applications worldwide for new crypto
techniques solely for
the purpose of branding them contraband.  Not so different from some of
the work the US FDA does.

Note that the market lock that PKP/RSA has on public key encryption in
the US is 
based on exactly this sort of algorithm protection, and if it's good
enough to reign in 
unbridled capitolism, it'll be good enough for the Justice Department to
litigate on. 
In effect, since PKP holds all the patents on public key in the US,
nobody else can use
these techniques without paying PKP or their licencees.  Outlawing just
those techniques
which are embodied in the PKP patents would be sufficient to outlaw all
public key encryption.

Note that issues like "is the patent valid" usually hinge on whether the 
authors of the patent were indeed the originators of the idea.  In the
case 
of outlawing the algorithms, it doesn't matter if the patent author was
the 
originator or not, or even if the patent is valid, still current, or
was intercepted when it was applied for and diverted to "Big Brother" 
instead of being granted.