From: Dave Emery <die@die.com>
Date: Fri, 6 Mar 1998 20:09:59 -0800 (PST)
To: cypherpunks@toad.com
Subject: RE: Crypto as contraband
Message-ID: <19980306231001.53809@die.com>
MIME-Version: 1.0
Content-Type: text/plain


Subject: Re: [LEGAL] Crypto as Contraband?
Reply-To: die@die.com
References: <v03102809b1265edd4202@[207.167.93.63]>
Mime-Version: 1.0
Content-Type: text/plain; charset=us-ascii
X-Mailer: Mutt 0.85
In-Reply-To: <v03102809b1265edd4202@[207.167.93.63]>; from Tim May on Fri, Mar 06, 1998 at 06:20:39PM -0800

On Fri, Mar 06, 1998 at 06:20:39PM -0800, Tim May wrote:
> 
> (Even with guns, in the U.S., there have historically been
> "grandfatherings" of existing guns. Not always, as with certain machine
> guns. And not with gold, which was declared contraband by the Reichsfuhrer
> in 1933.)
> 
> Could possession of PGP be still legal, but _use_ declared illegal?
> 
> (Not addressing the First Amendment issues, which are even stronger, but
> just the issue of retroactive contrabanding of something which was acquired
> legally, and by hundreds of thousands of law-abiding citizens.)
> 

	The House has just done this yesterday as mentioned in several
items posted to this very list:


	From HR2369, the Wireless Communications Privacy Enchancement Act
of 1998, passed by the House 414 to 1....



 "(4) Any person who manufactures, assembles, modifies, imports, exports,
 sells, or distributes any electronic, mechanical, or other device or
 equipment, knowing or having reason to know that the device or equipment ..."

 .... clause concerning satellite  piracy gear omited .....

 " , or is intended for any receipt, interception, divulgence, publication, or
 utilization of any communication in violation of subsection (a), shall
 be fined not more than $500,000 for each violation, or imprisoned for
 not more than 5 years for each violation, or both. For purposes of all
 penalties and remedies established for violations of this paragraph, the
 prohibited activity established herein as it applies to each such device
 shall be deemed a separate violation."

Subsection a: 

 " ....... No person not being authorized by the sender shall
 intentionally intercept any radio communication *or* divulge or publish
 the existence, contents, substance, purport, effect, or meaning of such
 intercepted communication to any person..........." 

	[note that *and* was changed by this bill to *or*, making interception
itself criminal]

	The only exception being :

 "Nothing in this subsection prohibits an interception or disclosure of a
  communication as authorized by chapter 119 of title 18, United States
  Code." 
     	  [which covers broadcast, ham, marine, aviation. governmental,
and communications readily accessible to the general public, whatever
that means]


	While this doesn't exactly retroactively ban *possession* of
radio gear capable of intercepting banned radio communications, it
provides extremely stiff felony level penalties for manufacturing,
assembling, modifying, importing, exporting, selling, or distributing
any radio receiving gear that might be construed to be intended for
receipt or interception of any radio communications not on the allowed
list.  And these penalties apply to each individual sale.

	Thus selling an old scanner at a Saturday morning hamfest to a
stranger for cash - a scanner legally purchased from Radio Shack in the
era  before cell phone frequencies were outlawed on scanners -  could
conceivably result in a $500,000 fine and a five year jail term.  And
Lord knows what horrible penalties could be assessed against innocent
people selling the sort of oddball specialized communications gear and
test equipment that are the stock in trade of many of the more
interesting ham fests and swapmeets [MIT's monthly fleas for example].

	Perhaps such informal personal sales will never be prosecuted,
but most sales of gear at hamfests and the like are anonymous cash
transactions between total strangers with every possiblity that the guy a
table over with the video camera is filming your sale for evidence.

	And for those who like to hack, tinkering quietly in their
basements with communications monitoring and decoding software and
hardware, manufacture and assembly have been defined in other federal
cases to include merely writing software for one's own use. Surely this
would apply to creating cryptanalysis software for any form of radio
communications at all, since it is not legal to intercept any radio
communications that are "scrambled or encrypted".  And there is no
exception made for research and development or academic purposes.

	So yes, they have done at least as bad a thing to people who
merely want to tinker with their radios and occasionally explore what is
out there in the ether by passively and in private receiving radio
signals as they have to gun owners, who at least possess a weapon
capable of doing some serious harm.  And there is not a single sentance
in the legislation providing any kind of encouragement for the use of
cryptography to protect the privacy of openly broadcast signals
receivable for miles around, let alone mandating it.

-- 
	Dave Emery N1PRE,  die@die.com  DIE Consulting, Weston, Mass. 
PGP fingerprint = 2047/4D7B08D1 DE 6E E1 CC 1F 1D 96 E2  5D 27 BD B0 24 88 C3 18