From: "James S. Tyre" <j.s.tyre@worldnet.att.net>
Date: Wed, 10 Sep 1997 12:29:04 +0800
To: Tim May <tcmay@got.net>
Subject: Re: Government shows its hand...good news!
In-Reply-To: <Pine.GSO.3.95.970909194656.9741B-100000@well.com>
Message-ID: <341619BC.6A3F@worldnet.att.net>
MIME-Version: 1.0
Content-Type: text/plain



Tim May is correct (as is Declan's clarification of his earlier note). 
If the amendment does become law, however, do not expect two things:

1.  Do not expect that it will be fast-tracked to the Supreme Court, as
was the case with CDA.  Instead, expect that it will start with the
District Court, take years to get to and through the Court of Appeals,
and then, if the U.S. Supreme Court decides to hear the matter at all
(it would have no obligation to do so), much more time there.

2.  Do not expect that a case will involve a broad coalition of
plaintiffs, as was the case with the CDA.  Expect that the courts will
only entertain an action by a plaintiff with traditional standing:  one
who goes through all of the bureaucratic hoops trying to get a license,
and then is turned down.

None of us know, of course, if the amendment will become law.  But if it
does, plan on it being a good while before the judicial process results
in anything determinative, one way or the other.

-Jim

Tim May wrote:
> 
> At 8:12 PM -0700 9/9/97, Declan McCullagh wrote:
> >Let me clarify my earlier comments. The language sez Defense & Commerce
> >together can veto crypto exports, and:
> >
> >"Decisions made by the Secretary of Commerce with the concurrence of the
> >Secretary of Defense with respect to exports of encryption products under
> >this section shall not be subject to judicial review."
> 
> Then this is _not_ the sense in which you seemed to be implying that the
> Supreme Court would be precluded from declaring the law unconstitutional.
> 
> --Tim May
> 
> >-Declan
> >
> >
> >
> >On Tue, 9 Sep 1997, Declan McCullagh wrote:
> >
> >> Let me type in that section. But I'm talking about the issue of the
> >> constitutionality of the legislation, of course. National security and
> >> all.
> >>
> >> -Declan
> >>
> >> On Tue, 9 Sep 1997, Tim May wrote:
> >>
> >> > At 5:57 PM -0700 9/9/97, Declan McCullagh wrote:
> >> > >I won't comment on Tim's second possibility, but the amendment added to
> >> > >SAFE today by one committee //prohibits// judicial review. So much
> >>for the
> >> > >Supremes likely to strike it down.
> >> > >
> >> >
> >> > "Prohibits" in what sense, and in what language?
> >> >
> >> > There's obviously a difference between prohibiting judicial review of
> >> > specific wiretaps and the issue of the constitutionality of the
> >>legislation
> >> > itself! I can only surmise you must mean that language has been added
> >> > saying magistrates, etc. are not part of the wiretap process.
> >> >
> >> > Clearly Congress, by the separation of powers arrangement we have in the
> >> > U.S., cannot say "And, oh by the way, the Supreme Court is not allowed to
> >> > declare this law unconstitutional."
> >> >
> >> > --Tim May
> >> >
> >> > There's something wrong when I'm a felon under an increasing number of
> >>laws.
> >> > Only one response to the key grabbers is warranted: "Death to Tyrants!"
> >> > ---------:---------:---------:---------:---------:---------:---------:----
> >> > 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."
> >> >
> >> >
> >> >
> >> >
> >> >
> >> >
> >>
> >>
> 
> There's something wrong when I'm a felon under an increasing number of laws.
> Only one response to the key grabbers is warranted: "Death to Tyrants!"
> ---------:---------:---------:---------:---------:---------:---------:----
> 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."