From: "Michael Pierson" <wfgodot@advicom.net>
Date: Sat, 4 Oct 1997 05:49:26 +0800
To: cypherpunks@cyberpass.net
Subject: Freedom of Encryption: Is it SAFE?
Message-ID: <199710032138.QAA29873@vespucci.advicom.net>
MIME-Version: 1.0
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There has been much discussion recently concerning how to fix
certain flaws, or block various amendments in encryption
legislation being shepherded through Congress.  A far more
fundamental problem with these legislative efforts from the
beginning was that they involved an implicit concession to the
idea that a U.S. citizen's freedom to privately exchange
information in whatever coding scheme he or she might choose
required some kind of government affirmation or ratification as
validation.  Once one seeks for the government's deigning to
"affirm the rights of United States persons to use and sell
encryption", it can (and does) then easily proceed to attach
conditions and caveats to these "affirmed" rights.  In the
process the surveillance hawks within the government have
managed, with hardly any struggle, to advance the appearance of
legitimacy for their claims of authority to regulate this form of
expression. 

Now comes an expectation that the nature of these "affirmed
rights" should be tailored to address "the concerns of national
security and the federal law enforcement community."  This same
community has on occasion complained about how their efforts to 
fight organized crime and terrorism are being thwarted by not 
having the modern newspeak disguised equivalent of "Writs of 
Assistance" (and they are arguably making progress toward 
acquiring just such powers IMO).  Very few politicians are 
willing to commit the heresy of clearly and staunchly asserting 
that the information coding methods used by citizens are under 
no obligation to pass any litmus test, or to be subject to any 
kind of prior approval or restraint determined by criteria of 
the law enforcement establishment or anyone else.  If the Feds 
lament that this will make their job harder, too bad.  In the 
words of Orson Welles: "Only in a police state is the job of a 
policeman easy." 

When these various legislative efforts attempted to reach beyond
the issues of export restrictions to address those of domestic
use, they became a doubtful and dangerous fix to something that
wasn't broke in the first place.  If the Government is intent on
"abridging the freedom" to use strong encryption domestically, a
legislative affirmation of these rights is feeble comfort at
best.  If I'm seeking to protect my possessions, I don't ask a
thief to affirm my property rights. 

Of course, even the export question is really about the aims of
the state's surveillance constituency to obstruct the wide
deployment of strong encryption domestically, and its
interoperability on the internet as a whole.  Challenging the
derisible bogosity of the "preventing the Evil Ones from
acquiring this technology" rationale that is invoked to justify
these restrictions was not something legislation was likely to do
with any great vigor.  Legislation to "relax" these restrictions
involves lending credence to the dubious assumption that these
restrictions had any constitutional validity to begin with. 

Any bill that would have truly provided for the statutory
endorsement of the acceptably uncompromised use of strong
encryption never really had much more than a snowball's chance in
hell of actually being signed into law given the current
political balance of power, did it?  Far more likely, was that it
could be corrupted and hijacked as a vehicle to further the very
type of restrictions it was purportedly intended to relieve.  A
collateral consequence is an increased arrogance and presumption
among lawmakers that it is their prerogative to act to define for
us citizens, what freedoms for domestic use of encryption we
should be permitted.  The growing gallery of GAK amendments and
competing legislative proposals now emerging appears to support
this sad scenario. 

It's starting to look like the prospects for meaningfully
improving the situation with encryption legislation in the
current political environment were about as promising as the
prospects of a neophyte gambler coming out ahead at a crooked
casino.  I expect any apparent winnings in the end will come with
a catch between the lines in the fine print, if they come at all.
In any case, whatever is legislatively affirmed can later be
legislatively denied.  What a King presumes is his to grant, he
usually presumes is his to revoke as well. 

In the end, what will have really been gained by this legislative
venture, and what will have been explicitly or implicitly
surrendered?  As I see it, at this point the issue isn't about
counting wins, it's about cutting losses. 

Freedom of encryption.... Is it SAFE?  I don't think so. 


- -Michael 

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