Re: On the crime bill and remailersRe: On the crime bill and remailers

Mr. Unicorn is rude and uninformed.  He will go far.

1) The act does not make it a per se offense to have a remailer.

2) The act makes it an offense to aid a terrorist.

3) Query: is there a scienter requirement in (2)?

[for the sake of simplicity, we will ignore the fact that there are
scienter requirements in a related part of the bill already, and use Mr.
Unicorn's hypothetical of no explicit requirement of scienter]

3a) There must be a scienter requirement to avoid turning the
proscription in (2) into either (i) a per se offense, excluded by
(1), or (ii) a violation of due process.

3b) Query: why would it be a violation of due process to
have a ban on unknowingly aiding terrorists in the manner Mr. Unicorn 
wishes to read the satute?

An analogy will make the point.  Suppose the act concerned restaurant
regulation, and made it an offence to "feed" a terrorist.  Carlos walks
into your joint in disguise, orders and duly consumes ham on rye.  What
verdict?  Courts will do what it takes to say not guilty, whether via due
process, the rule of leniency, or statutory construction. 

N.B. these problems could be cured, and due process observed, by finding a
duty to make enquiry or imputing a negligence standard of some sort, but
we do not see any hint of this in the statute. 

4) Aha! you say, but terrorism is different from nice law abiding
restaurants, and we brave c'punkers that we are, are on the Edge,
not like the honest sandwitchman.  The courts will not give us
any breaks.  Alas, there is the case of Ratzlaf v. United States,
114 S.Ct. 655 (1994) [summary quoted below], in which the Supreme
Court imputed a scienter requirement into a money laundering
statute which on its face required no such scienter at all.  

5) QED.
(As for others who are as quick to damn as to praise...watch your 
cholestorol!)

//QUOTING--
SYLLABUS:  
As here relevant, federal law requires a domestic bank involved
in a cash transaction exceeding $ 10,000 to file a report with
the Secretary of the Treasury, 31 U.S.C.  5313(a), 31 CFR 
103.22(a); makes it illegal to "structure" a transaction -- i.e.,
to break up a single transaction above the reporting threshold
into two or more separate transactions -- "for the purpose of
evading the reporting requirement," 31 U.S.C.  5324(3); and sets
out criminal penalties for "[a] person willfully violating" the
antistructuring provision,  5322(a). After the judge at
petitioner Waldemar Ratzlaf's trial on charges of violating 
5322(a) and 5324(3) instructed the jury that the Government had
to prove both that the defendant knew of the  5313(a) reporting
obligation and that he attempted to evade that obligation, but
did not have to prove that he knew the structuring in which he
engaged was unlawful, Ratzlaf was convicted, fined, and sentenced
to prison. In affirming, the Court of Appeals upheld the trial
court's construction of the legislation. 
 
Held: To give effect to  5322(a)'s "willfulness" requirement,
the Government must prove that the defendant acted with knowledge
that the structuring he or she undertook was unlawful, not simply
that the defendant's purpose was to circumvent a bank's reporting
obligation. Section 5324 itself forbids structuring with a
"purpose of evading the [ 5313(a)] reporting requirements," and
the lower courts erred in treating the "willfulness" requirement
essentially as words of no consequence. Viewing  5322(a) and
5324(3) in light of the complex of provisions in which they are
embedded, it is significant that the omnibus "willfulness"
requirement, when applied to other provisions in the same
statutory subchapter, consistently has been read by the Courts of
Appeals to require both knowledge of the reporting requirement
and a specific intent to commit the crime or to disobey the law.
The "willfulness" requirement must be construed the same way each
time it is called into play. Because currency structuring is not
inevitably nefarious, this Court is unpersuaded by the United
States' argument that structuring is so obviously "evil" or
inherently "bad" that the "willfulness" requirement is satisfied
irrespective of the defendant's knowledge of the illegality of
structuring. The interpretation adopted in this case does not
dishonor the venerable principle that ignorance of the law
generally is no defense to a criminal charge, for Congress may
decree otherwise in particular contexts, and has done so in the
present instance. Pp. 5-15.
 
976 F.2d 1280, reversed and remanded.

JUDGES: GINSBURG, J., delivered the opinion of the Court, in
which STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined.
BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST, C.
J., and O'CONNOR and THOMAS, JJ., joined.

//END QUOTE-----------

SOLONg

Anonymous scripsit
> 
> Mr. Unicorn is rude and uninformed.  He will go far.

Anonymous must be a Baker & Botts associate.

> 
> 1) The act does not make it a per se offense to have a remailer.
>
> 2) The act makes it an offense to aid a terrorist.
> 
> 3) Query: is there a scienter requirement in (2)?

  4) Query: and if so how will it be diluted by the investigation 
requirements in the act?

> 
> [for the sake of simplicity, we will ignore the fact that there are
> scienter requirements in a related part of the bill already, and use Mr.
> Unicorn's hypothetical of no explicit requirement of scienter]

1>  Please point these out.
2>  Please show the connection between related parts of the bill and the 
offense definition.  (I was at a loss to make such a connection, have I 
missed something?)

> 3a) There must be a scienter requirement to avoid turning the
> proscription in (2) into either (i) a per se offense, excluded by
> (1), or (ii) a violation of due process.

By refering back to (1) here you are assuming that which is to be 
proven:  It is not a per se offense to run a remailer because that would 
violate your premise that is it not a per se offense to run a remailer.  
Or is your premise based on some other reference?

Instead you might ask how the statute will be read in the context of the 
differing language between the investigation threshold requirement and 
the definition of offense.  Why would one mention intent so explicitly 
and the other ignore it?  Did congress anticipate the difficulty of 
showing intent in this type of prosecution and structure the act 
accordingly?  This would be my argument as a prosecuter.

> 3b) Query: why would it be a violation of due process to
> have a ban on unknowingly aiding terrorists in the manner Mr. Unicorn 
> wishes to read the satute?

Ah, but the counter to this arguement (obviously structured well into the 
statute) is that there will never be any investigation into the offense 
without resonable facts to suggest intent.  (This is the killjoy to the 
due process arguement.)

> An analogy will make the point.  Suppose the act concerned restaurant
> regulation, and made it an offence to "feed" a terrorist.  Carlos walks
> into your joint in disguise, orders and duly consumes ham on rye.  What
> verdict?  Courts will do what it takes to say not guilty, whether via due
> process, the rule of leniency, or statutory construction. 

You rely on the construction tending to constitutionality here, but it is 
equally valid to construct the statute as meeting the due process 
requirement via the investagatory intent requirement.  This was my entire 
point.  Given the difference in the requirements between allowing 
investigation and definition of offense, there is a basic imbalance in 
the act.  Why?  Accident, poor drafting? Intent?

> N.B. these problems could be cured, and due process observed, by finding a
> duty to make enquiry or imputing a negligence standard of some sort, but
> we do not see any hint of this in the statute. 

Exactly.  So why are they not?  Why is this never mentioned.  I can only 
believe that the structure of the statute is intended to provide this 
arguement as a loophole.  I'm not paranoid enough to want to claim that 
this is to peg remailer operators specifically, (duh) but what are the 
implications for a very soft offense definition in a federal crime bill?

> 4) Aha! you say, but terrorism is different from nice law abiding
> restaurants, and we brave c'punkers that we are, are on the Edge,
> not like the honest sandwitchman.  The courts will not give us
> any breaks.  Alas, there is the case of Ratzlaf v. United States,
> 114 S.Ct. 655 (1994) [summary quoted below], in which the Supreme
> Court imputed a scienter requirement into a money laundering
> statute which on its face required no such scienter at all.  

I have not had time to look at 31 USC 5324(3) in detail with reference to 
this problem.  Nor have I looked at the case.  At first glance it looks 
promising, but I remain a skeptic.  It is too tempting to use the 
language in the investigatory intent requirement to dismiss the 
arguements you make.

I must admit to being impressed at this reference however.  I may be 
eating crow soon.

> 5) QED.
> (As for others who are as quick to damn as to praise...watch your 
> cholestorol!)

I eat Sausage McMuffins with egg every morning.

> //QUOTING--
> SYLLABUS:  

> time it is called into play. Because currency structuring is not
> inevitably nefarious, this Court is unpersuaded by the United
> States' argument that structuring is so obviously "evil" or
> inherently "bad" that the "willfulness" requirement is satisfied
> irrespective of the defendant's knowledge of the illegality of
> structuring.

In any event, this is the real key here.  What do you think a judge will 
find encrypted remailing rates on the "nefarious" scale?  In context I 
think it will be quite harsh.  Especially given the very nature of the 
act, (to avoid detection of one thing or another).  I believe anonymous 
remailers have some use.  But they are so targeted to prevent GOVERNMENT 
observation and intercepts, that they just plain look bad.  This would be 
the key distinction in such a case from Raztlaf.  All a judge has to do 
to throw out this entire argument is find that encrypted, traffic 
analysis foiling, anonymous remailers are more nefarious than currency 
structuring.  Given the (lack of) public exposure to the technology, what 
do YOU think this ruling will turn out to be, especially if the only real 
legitimate argument for why remailers are legitimate rests on more 
libertarian grounds.

> 
> SOLONg
> 

Impressed with your research skills, not quite convinced with your argument.

-uni- (Dark)


-- 
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!

Black Unicorn <unicorn@access.digex.net> writes:
>I believe anonymous 
>remailers have some use.  But they are so targeted to prevent GOVERNMENT 
>observation and intercepts, that they just plain look bad.

I strongly disagree with this.  Anonymous remailers as presently constructed
will be almost completely ineffective against any significant government
attempts to surveil email traffic.  The government does have the resources
today to defeat most uses of remailers.  Since present-day remailers lack
padding features, the correspondence between incoming and outgoing messages,
even with encryption, is relatively easy to establish.  This is made worse
by the lack of general support for reordering, which renders the task
almost trivial.

Instead, anonymous remailers are clearly targetted against non-government
traffic analysis, generally local associates, system operators, employers,
supervisors, and so on.  They allow people to communicate without
repercussions and retribution at work or at school.  They let people exchange
email in an insecure environment while hiding both the message address and
its contents.  They allow whistle blowers to expose malfeasance without
being punished.  These are the kinds of things the remailers are good for.

Claims here that remailers are designed to support sedition or to
prevent government surveillance are both wrong and harmful.  This kind
of material could show up at some future prosecution of a remailer
operator.  It is important that we understand clearly what the capabilities
and limitations of current remailers are.

Hal

Hal scripsit
> 
> Black Unicorn <unicorn@access.digex.net> writes:
> >I believe anonymous 
> >remailers have some use.  But they are so targeted to prevent GOVERNMENT 
> >observation and intercepts, that they just plain look bad.
> 
> I strongly disagree with this.  Anonymous remailers as presently constructed
> will be almost completely ineffective against any significant government
> attempts to surveil email traffic.  The government does have the resources
> today to defeat most uses of remailers.  Since present-day remailers lack
> padding features, the correspondence between incoming and outgoing messages,
> even with encryption, is relatively easy to establish.  This is made worse
> by the lack of general support for reordering, which renders the task
> almost trivial.

While I believe you are correct that remailers are not currently secure 
against the kind of assets a government would use against them, this was 
not my point.  The benchmark we all seem to use in evaluating the 
security of any of the new crypto/cypherpunk technologies are the 
government abilities.  How strong is a remailer one asks?  Immediately a 
slew of answers as to how the government could penetrate the system 
come out.  (See above)  Then, immediately following, come suggestions to 
defeat these methods.  The key effort is to defeat the worst case 
technology and the best funded attacker.  Is this not a basic axiom of 
cypherpunks, and cryptography in general?  I would argue so.  The fact 
that remailers may or may not be able to withstand government level 
attacks is academic.  The point is they are designed increasingly so.  
The point is not if we are 75% there, or 100% there, but that the 
perception will be that the goal is to make them entirely secure.  Only 
programs like the Clipper program do otherwise.  The entire POINT is to 
have the most secure system possible.

Do cypherpunks intentionally cripple their software now?

How long was I gone?

> 
> Instead, anonymous remailers are clearly targetted against non-government
> traffic analysis, generally local associates, system operators, employers,
> supervisors, and so on.  They allow people to communicate without
> repercussions and retribution at work or at school.  They let people exchange
> email in an insecure environment while hiding both the message address and
> its contents.  They allow whistle blowers to expose malfeasance without
> being punished.  These are the kinds of things the remailers are good for.

Are good for perhaps, but the theory, the practice will always appear to 
be anti-authoritarian.  In my eyes this is a GOOD thing, in the context 
of criminal offense, and how the process is likely to be seen by a court....

> Claims here that remailers are designed to support sedition or to
> prevent government surveillance are both wrong and harmful.  This kind
> of material could show up at some future prosecution of a remailer
> operator.  It is important that we understand clearly what the capabilities
> and limitations of current remailers are.

Apples and oranges.  The current capabilities and the design goal are two 
different things.  You know as well as I that all this will boil down to 
the words: "Defendant attempted to use used a computer remailer to mask 
his transactions from authorities.  Detective Blow was successful in 
defeating the defendants efforts and presents the evidence before us today."

As for this material being used in court for intent purposes, since when 
has censorship been a policy here.  Are we now in the business of 
watching what we say in order not to step on too many toes?

Are there not thousands of messages with the words "But if the NSA can do 
X, shouldn't we try Y" on this list?  How will these look?

> Hal


-uni- (Dark)

-- 
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!

Black Unicorn <unicorn@access.digex.net> writes:
   >But they are so targeted to prevent GOVERNMENT 
   >observation and intercepts, that they just plain look bad.

   I strongly disagree with this.  Anonymous remailers as presently constructed
   will be almost completely ineffective against any significant government
   attempts to surveil email traffic.

Is this the national security part of government, or the law
enforcement part of government?  Certainly the national security
apparatus has the technical means to defeat the current remailers,
but does the FBI or (even more unlikely) the local cops?

True, the FBI could ask for a data tap on the connections to a
remailer, but they would have to know how to do it, first, and in any
case it would be very expensive.  Compatible remailers spanning the
globe could be argued evidence of an attempt to thwart law enforcement
access by internationalization.  Certainly remailers hinder law
enforcement, if not actually prevent it.

And in the end, it's a court that decides, not a military tribunal.
Uni's argument is worth examining and does not fall down on its face.

Eric

Eric Hughes scripsit
> 
>    Black Unicorn <unicorn@access.digex.net> writes:
>    >But they are so targeted to prevent GOVERNMENT 
>    >observation and intercepts, that they just plain look bad.
> 
>    I strongly disagree with this.  Anonymous remailers as presently constructed
>    will be almost completely ineffective against any significant government
>    attempts to surveil email traffic.
> 
> Is this the national security part of government, or the law
> enforcement part of government?  Certainly the national security
> apparatus has the technical means to defeat the current remailers,
> but does the FBI or (even more unlikely) the local cops?
> 
> True, the FBI could ask for a data tap on the connections to a
> remailer, but they would have to know how to do it, first, and in any
> case it would be very expensive.  Compatible remailers spanning the
> globe could be argued evidence of an attempt to thwart law enforcement
> access by internationalization.  Certainly remailers hinder law
> enforcement, if not actually prevent it.

While I agree that remailers could eventually, if not already deter the 
local cops, and perhaps even federal enforcement, my point was more 
design goal, not current capability.  This distinction is likely to be 
lost in any court proceedings, or in any FISA proceeding.  Again, it 
means nothing that remailers do or do not have the capability to deter 
this or that kind of attacker, but that they are not intentionally 
crippled to allow government circumvention.

If I use a scanner to listen to police activity while committing a crime, 
and such an offense is an obstruction charge in my jurisdiction, does it 
matter that I was a moron and that I had it tuned to the wrong channel, 
and was caught?

What if the scanner was too primitive to deal with the new 800 MHZ police 
band?  Am I still guilty?  What if I was using it to listen to the 
weather forecast so the stolen flour wouldn't be rained on?

Isn't it obvious that the judge will take a dim view of ALL these examples?

In this context isn't it important to examine these possibilities as if 
they are a threat with an eye toward addressing them and making remailers 
immune to this type of argument?

> 
> And in the end, it's a court that decides, not a military tribunal.
> Uni's argument is worth examining and does not fall down on its face.
> 

Why thank you Mr. Hughes!  :)

> Eric
> 

-uni- (Dark)

-- 
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!

I agree with Hal Finney's point that current remailers are far from
the "ideal mix" described by Chaum and are basically not very good at
what they are supposed to do.

> I strongly disagree with this.  Anonymous remailers as presently constructed
> will be almost completely ineffective against any significant government
> attempts to surveil email traffic.  The government does have the resources
> today to defeat most uses of remailers.  Since present-day remailers lack
> padding features, the correspondence between incoming and outgoing messages,
> even with encryption, is relatively easy to establish.  This is made worse
> by the lack of general support for reordering, which renders the task
> almost trivial.

Most remailers would not hold up to even fairly simple input-output
analysis, let alone surveillance of the whole set of remailers. (I
often think that in cryptanalysis of remailers we are roughly at the
1930s level of ciphermaking, where "Gee, it looks pretty complicated
to me....I can't see any way to break it, so it must be secure"
reasoning substituted for detailed mathematical or
information-theoretic analysis.)

> Instead, anonymous remailers are clearly targetted against non-government
> traffic analysis, generally local associates, system operators, employers,
> supervisors, and so on.  They allow people to communicate without
> repercussions and retribution at work or at school.  They let people exchange
> email in an insecure environment while hiding both the message address and
> its contents.  They allow whistle blowers to expose malfeasance without
> being punished.  These are the kinds of things the remailers are good for.

These are what Julf- or Cypherpunks-style remailers are presently good
for, but the goals of getting hundreds of remailers out there with
much-improved mix characteristics is certainly intended to provide
security against a more formidable adversary than the local sysop.

> Claims here that remailers are designed to support sedition or to
> prevent government surveillance are both wrong and harmful.  This kind
> of material could show up at some future prosecution of a remailer
> operator.  It is important that we understand clearly what the capabilities
> and limitations of current remailers are.

Well, Hal is certainly entitled to his view. I strongly support ideal
mixes as a tool for obtaining increased freedom from coercive
governments (whether in Burma/Myanmar or in the U.S.), and hence view
government surveillors as the chief adversary, not the local sysop.

Is this "wrong and harmful"? 

Maybe. This is why I brought up the "supporting terrorists" language
of the Crime Act.

Free speech ain't what it used to be. But maybe it will be again, with
our help.

--Tim May



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SOLONg discusses the "scienter" requirement in various laws.  I believe
this refers to the legal requirement that you know you are breaking the
law in order to be breaking the law (so to speak).  The export restrictions
we discuss so much here also have this requirement.  If you drive across the
border with your pickup truck full of ammunition, the government has to
prove that you knew it was illegal to do so in order to convict you.

Presumably this implies that if you mail RIPEM to your buddy in England
you would only be breaking the law if you knew about the legal restrictions.
It would be interesting to see how the government goes about proving this
knowledge if they ever bring an ITAR case.

Does this also suggest that our discussions about the legalities of crypto
export are harmful because they could take away a possible defense of
ignorance on the part of some list reader who is the victim of an ITAR
prosecution?  Perhaps this is really a case where "ignorance is bliss."

Hal

-----BEGIN PGP SIGNED MESSAGE-----


> SOLONg discusses the "scienter" requirement in various laws.  I believe
> this refers to the legal requirement that you know you are breaking the
> law in order to be breaking the law (so to speak).  The export restrictions
> we discuss so much here also have this requirement.  If you drive across the
> border with your pickup truck full of ammunition, the government has to
> prove that you knew it was illegal to do so in order to convict you.

In general, scienter/mens rea requirements mean that you must have intended
a particular action (or failure to act) - the question is about your 
understanding of the facts of a particular situation, not the legal status
of a particular situation. Given your example, it's illegal to drive
across the border, knowing your pickup contains ammunition - whether or
not you believe your actions are legal. It's not illegal to drive across
the border with a box full of ammunition if you thought you were carrying
a box full of clothes.

The old saw "ignorance of the law is no excuse" is basically accurate.
Good-faith reliance on legal advice from competent counsel won't even
save you. (but it might get you a malpractice judgement/settlement). 

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