From: Declan McCullagh <declan@well.com>
Date: Fri, 12 Sep 1997 09:20:17 +0800
To: Tim May <tcmay@got.net>
Subject: Court proceedings under new SAFE act
In-Reply-To: <v03102806b03e38033026@[207.167.93.63]>
Message-ID: <Pine.GSO.3.95.970911175628.12105l-100000@well.com>
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I'm reading the bill more closely. This is incredibly slick work.

1. When it appears that any person is selling, importing, or distributing
non-backdoor'd crypto or "about" to do so, the Atty General can sue to
stop them. "Upon the filing of the complaint seeking injunctive relief by
the Attorney General, the court shall automatically issue a temporary
restraining order against the party being sued." 

2. There are provisions for closing the proceedings -- at the request of
the "party against whom injunction is being sought." "Public disclosure of
the proceedings shall be treated as contempt of court." Can also be closed
if judge makes finding. 

3. You can request an advisory opinion from the Atty Gen to see if crypto
you're about to give out (even for free) violates the law. That will get
you off the hook during any prosecution. 

4. If DoJ loses at trial court, they get an expedited appeal. 

More interestingly, this gives courts including the FISA court (yes, the
secret court that has never denied a request for a wiretap) jurisdiction;
they can issue ex parte orders giving police access to plaintext. Also
lets U.S. government coordinate with other governments in doing such.

You get notified not later than 90 days afterwards. There are a lot of
other "checks and balances" here that will be touted as safeguards.

-Declan


On Thu, 11 Sep 1997, Tim May wrote:

> At 4:30 PM -0700 9/11/97, Jim Ray wrote:
> 
> >Bernstein? I can understand (while not agreeing with...) my local
> >rag's opposition to the second amendment, but the total apathy
> >shown to dangers faced by the first is hard to fathom. I read the
> >Herald pretty carefully, yet there has been NOTHING this week on
> >the crypto-controversy. Nothing. While I often disagree with the
> >Miami Herald's reporting decisions (both substance and emphasis)
> >it is rare that I find it this scary. <sigh>
> 
> As Declan noted, when he wrote,
> 
> "* Ban on sale of crypto without a backdoor. Five year & fine (maybe
> $250,000?) if violated. Prosecutions can be held in closed-door
> courtrooms, publishers of info about case to be held in contempt of court."
> 
> this means newspapers may not write articles on this case, or the law.
> 
> This is why the "Miami Herald" dares not cover this.
> 
> (But seriously, the above example cited, that publishers of info being held
> in contempt of court, seems too wacky even for the current Congress. Have
> they no understanding of what a free press is? Free press applying to any
> of us, of course, and not just to the "officially recognized major news
> sources." I can't beleve that could withstand court scrutiny.)
> 
> And the prosecutions in closed-door courts would seem also to violate
> various provisions of the Constitution, including the 6th. (That the
> "foreign intelligence surveillance court" (FISUR) has not been challenged
> perhaps has to do with its origins under one of the Emergency Powers
> things, and its limited applicability to ordering surveillance. But to
> extend this to, say, the prosecution of someone, even a citizen, seems like
> a blatant "star chamber" situation.)
> 
> The rest of this verison is equally bad--sounding. (I mention "this
> version," because each of the committees--Intelligence, Commerce, National
> Security, whatever--is fighting to make their versions more Big Brotherish.)
> 
> What a fucking bunch of criminals.