From: Tim May <tcmay@got.net>
Date: Sat, 25 Oct 1997 01:30:52 +0800
To: whgiii@invweb.net
Subject: GMR in the talked-about form here would be unconstitutional
In-Reply-To: <877698834.17691.193.133.230.33@unicorn.com>
Message-ID: <v03102807b07688340782@[207.167.93.63]>
MIME-Version: 1.0
Content-Type: text/plain




I agree that draconian crypto laws are afoot, but I don't discount the
power of constitutional challenges.

At 6:13 AM -0700 10/24/97, mark@unicorn.com wrote:

>Really? Read the message I sent after that one. Let's suppose it's 2007,
>PGP have 99% of the crypto market. CMR compatibility is incorporated into
>all their products.
>
>The FBI announce that from today all Internet providers must support PGP
>SMTP enforcers on all mail passing across their links, and block all other
>SMTP connections. Regardless of whether your mail is spooled on your ISP's
>hard disk, it will always pass through their link. All encrypted mail must
>now be encrypted to the FBI's key as well as the end user's key or it will
>bounce.

So,

- the client who communicates with his lawyer must encrypt to the
government's key, allowing the government to read the traffic at any time

- the penitent who confesses electronically (such services already exist)
will be confessing to the government

- a patient and doctor who discuss private medical conditions will be
discussing them with the Thought Police

- a confidential source who reveals information to a journalist will also
be revealing it to the government

And so on, for the usual laundry list of problems with warrantless searches
and widespread surveillance. These are just some of the most
readily-understandable problems.

Will a "must encrypt to government key" provision pass constitutional
muster? I don't think so.

So long as the First and Fourth (and the Fifth may apply, too) Amendments
remain in force, compelling a person to speak in certain ways and
monitoring what he says privately without a proper court order is
unconstitutional.

At least the convoluted stuff in Clipper about "LEAF" fields, splitting of
keys between agencies, proper court orders, etc., had the "fig LEAF" of
protecting some basic constitutional rights. A straight "encrypt to the
government's key" is too crude to withstand any court scrutiny.

I'm obviously not a lawyer, let alone a constitutional scholar, but I think
I'm solid footing here.  A crude, blanket order to include the government
in all communications would absolutely be struck down as a chilling of
speech (political or otherwise) and as an unlawful search and seizure of
one's papers.

In other nations, ignore the above analysis.

--Tim May




>
>So, tell me why "much more needs to be done". Tell me again why this
>can't be implemented. The only reason it *can* be implemented is that
>PGP build the feature into their software.
>
>> Not to mention that *ANY* crypto system can be turned into GAK if
>> the FBI & NSA get congress to pass the laws that they want.
>
>Yes, but PGP WANT TO BUILD THIS INTO EVERY SYSTEM THEY SELL!!!!! I don't
>care that any Perl hacker can write a script which builds CMR into PGP
>2.6.2, because those scripts are restricted to those who wish to use
>them. PGP ARE BUILDING THE FUNCTIONALITY INTO EVERY PRODUCT THEY SELL!!!!
>
>How hard is this to grasp?
>
>> What PGP Inc. did was provide what their *customers* , you know the ones
>> that pay their bills and keep them in business, wanted in a timely fashion
>> with little modification to their current code while circumventing some of
>> the more draconian requests.
>
>Really? Did their customers ask specifically for PGP's flawed CMR
>implementation, or did they actually say things like 'Well, we want to
>be able to recover mail if someone dies or leaves the company'? If it's
>the latter, don't you think that PGP should take responsibility for
>implementing it in such a GAK-friendly way?
>
>You seem be repeating the other pro-PGP mantra 'oh, you're not thinking
>of the company's point of view'. I certainly am, which is why I want to
>see that they get the best, most secure system without any GAK-friendly
>features.
>
>Here's a quick example of how cool CMR is... let's suppose that
>loser@foo-bah.com upsets a customer and is working for a CMR corporation.
>Mr Irate Customer downloads some of that kiddie porn that we're told is
>all over the Net, and encrypts it to loser@foo-bah.com, but doesn't
>encrypt it to the company key. Mr Irate Customer mails hundreds of these
>images to loser@foo-bah.com. Their system bounces them. The security
>personnel at foo-bah.com notice all these bounces and snarf some of the
>messages.
>
>The security personell take these messages to Mr Loser, and force him to
>decrypt them. Shock, horror, what a hideous, insane pervert Mr Loser must
>be to be receiving all these messages. Mr Loser is handed over to the cops
>and taken away. He might not go to jail, but he'll lose his job.
>
>With a more rational implementation Mr Loser would receive the messages
>and see that they're obscene, and immediately report them to the security
>personnel who could track down the sender. But when the security personnel
>find them first, they immediately assume that Mr Loser asked for them.
>
>Now, if you want to be able to get people sacked, this is cool. If you
>work for a company with CMR, this is really bad. It is also unneccesary.
>
>> >These are the important questions we should be asking and noone on the
>> >pro-PGP side seems interested in answering them. Why?
>>
>> They have been answered time and time again, you just have not been
>> interested in listening.
>
>They have not. All we've heard are 'oh, don't worry, it can't happen,
>be happy' assurances with no basis in fact. Is it any wonder we aren't
>listening?
>
>> If this is such a life and death issue why don't you and some of the other
>> Cypherpunks Philosopher Kings get off your armchair quarterbacking write,
>> test, debug, and *market* your superior system??
>
>Duh, because PGP has name recognition, and because by the time it was
>finished they'd already have a large part of the market. But note: I'll
>be very surprised if PGP CMR gets into the OpenPGP spec. Which means that
>any other compliant implementation of PGP will not be compatible with
>CMR.
>
>> Perhaps because the majority of the "PGP Inc is evil" crowd
>> here couldn't make a buck in the business world if their lives depended on
>> it.
>
>Oh sure, ad hominem, ad hominem. What the hell do you think I do all
>day? Why the hell do you think I'm spending so much time trying to show
>people what CMR's problems are when I could be making money?
>
>> I also find it interesting how there is "much weeping gnashing of teeth"
>> over PGP 5.5 , which does nothing that couldn't be done with 2.6, while
>> Netscape, RSA and the S/MIME crowd put weak crypto on every desktop??
>
>Better weak crypto than GAK. Key-lengths can be increased, government
>surveillance infrastructure cannot easily be removed.
>
>    Mark


The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."