From: "Timothy C. May" <tcmay@got.net>
Date: Sun, 29 Dec 1996 14:01:50 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: "Structuring" of Communications a Felony?
In-Reply-To: <v02140b03aeec93ad25a9@[10.0.2.15]>
Message-ID: <v03007800aeec96b09112@[207.167.93.63]>
MIME-Version: 1.0
Content-Type: text/plain


At 1:35 PM -0800 12/29/96, Steve Schear wrote:

>Tim, I think that this is highly unlikely.  The SC has ruled repeatedly
>that anonymous speech is a foundation of American politics (e.g., the
>Federalist Papers).
>
>Care to make this prediction a bet?

Unlike Sandy, I'm not a great believer in multi-year bets as an
epistemological tool....

As to the "anonymous speech" rulings, I mainly know of the 1956 Georgia
case, in which the Supremes struck down a law requiring that leaflets
handed out have a name attached. I don't know of more recent rulings,
especially ones related to the Internet.

(Why this is important is that the Supreme Court has often differentiated
between types of speech. For example, ask a liquor or tobacco company if it
has "freedom of speech." Ask those who put labels on their products if they
have freedom of speech--the Federal Trade Commission, Food and Drug
Administration, etc., declare what may not be said, what must be said, etc.
First Amendment scholars are of course well aware that the First is not
treated as an absolute.)

If origin-labelling is unconstitutional, as Steve claims, then on what
basis can the U.S. Postal Service require identification for packages over
one pound? Surely what is inside the package may be considered "speech" (by
those interested in pushing the point).

And there are many other situations where anonymity is no longer allowed,
where once it was. The gambling example Brian Davis brought up is an
example: for the purposes of tax collection, regulation of gambling, etc.,
winners of nontrivial amounts must identify themselves. (This example shows
that various governmental practices--tax collection, regulation of
substances, regulation of markets, etc.--can be used to trump what were
once considered to be basic freedoms...the freedom to spend money
anonymously, the freedom to travel anonymously, the freedom to not have tax
collectors enter one's house and inspect one's papers, and so on, are no
longer considered to be freedoms.)

As to how such regulations about origin-labeling might develop, here are
several points:

1. A sharp increase in spamming, mass mailing, threatening letters,
etc....sort of like the "denial of service" and spamming/looping attacks
seen here on Cypherpunks, and being seen widely on the Net. This will
increase pressure to "do something about it." A Senator Exon type person
will introduce legislation to require e-mail be labelled.

2. As the Four Horsemen ride, as death threats are delivered anonymously
(as has already happened), further calls will be made for requiring I.D. of
packets. At the least, remailer services will be required to "escrow" the
identities of senders. (The Church of Scientology is a situation to
consider...they were able to force Julf to reveal a pseudonym-true name
mapping, and I expect more such cases...Europe will probably evolve quickly
to a system where pseudonyms will be permitted, providing an "identity
escrow" data base is inspectable by law enforcement and interested parties
in legal cases.)

Such identity escrow in remailer networks would of course put an end to
chaining of remailers.

3. Civil libertarians will wail and will cite the 1956 Supreme Court case
about leafletting. Lawyers on the other side will point out that all that
is being affected is _mail_, not anonymous speech in public fora (though
restrictions on that may be tried, too). That is, that the _content_ of a
package, a la the Postal Service I.D. situation, is not at issue, only the
valid identification of point of origin.

4. A couple of court rulings could devastate remailers. For example,
holding remailers liable, criminally and civilly, for the content of
messages they deliver. Without an origin address, the remailer could be
assumed to have originated the message.

(This has long been an issue, implicit in my "everyone a remailer" thesis
of a few years back. Anyone could send any message, and simply claim "I
didn't write it...I'm just a remailer.")

In closing, I think the Supreme Court will, when it eventually agrees to
hear a relevant case, will differentiate between protected anonymous speech
in public forums and the labelling of sealed packages, sealed letters, and
sealed e-mail. They will argue along the lines of saying that the labelling
law is for the protection of society and not for tracking down dissidents.
The effect will of course be the same, but this will be the fig leaf which
allows them to uphold such laws.

--Tim May





Just say "No" to "Big Brother Inside"
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: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."