Re: So, what crypto legislation (if any) is necessary?

At 09:26 PM 3/25/96 -0800, Timothy C. May wrote:
>At 1:21 AM 3/26/96, jim bell wrote:

>IANACS (I am not a Constitutional scholar), but it is clear that the
>Constitution, being a relatively short document, is a _framework_, a kind
>of "generator," for establishing additional legislation. This is, obviously
>enough, why there is _legislative branch_, after all.
>
>Jim's argument (?) could be turned in all sorts of ways: "Your Honor, there
>is nothing I can find in the Constitution that says I can't drive on the
>left side of the road at 125 miles per hour." Indeed, there is nothing
>laying out detailed traffic laws. And so on.

OTOH, there is much precedent for being able to conclude that a
long-established practice is simply unconstitutional.  To name just a single 
example, suffragist Susan B. Anthony insisted in  1872 on the right to 
vote, arguing that the Constitution guaranteed all citizens that right, and 
women were citizens too. Both premises were correct; In hindsight, the issue 
was whether or not they were considered together or merely separately.   
Nevertheless, it took the 19th amendment passed in 1920 to "grant" this 
right to women.

Although my MCP (male chauvenist pig) credentials are at least as good as most, 
but not only did she have a point, she was absolutely correct.  Despite 80+ 
years of contrary history, nothing within the Constitution could be 
interpreted as excluding women from voting.  It was merely the practice of 
the day to do so.  That practice COULD HAVE been changed without itself 
violating the Constitution; at least in theory the 20th amendment wasn't 
necessary.  The fact that an amendment was the way the practice was 
changed shows that people will attempt to use the Constitution to justify 
practices which can't genuinely be supported there.  The lesson to be 
learned from this is that "our" government does some things entirely without 
regard to the wording of the Constitution, which may later be recognized as 
wrong by later, more civilized times.

For an example that has not yet been legally recognized, the Constitution 
prohibits "involuntary servitude," but until a couple of decades ago the 
military draft was in force.  Challenges to the draft on that basis have 
never been recognized, despite the fact that the draft is one of the most 
obvious examples of "involuntary servitude" that there is.


>That the Fifth Amendment attempts to make it clear that a defendant shall
>not be compelled to give testimony which may tend toincriminate himself
>(lotsa gotchas, as expected) clearly--to me if not to Jim Bell--implies
>that a "legal system" involving testimony, search warrants, subpoenas,
>juries, verdicts, appeals, etc., is implied by various parts of the
>Constitution.

It is, however, far more strongly "implied" by current practice than by any 
black-letter Constitutional provisions.  The difficulty is separating 
_Constitutional_ justification from "Well, that's the way we've always done 
it, so it MUST be okay!"  It's too bad that many people can't see the 
difference.


>(I could search one of the many online copies of the Big C for details, but
>I'm sure you all, except perhaps Jim, get it.)
>
>I'm no apologist for Big Government, of course, so I think we have vastly
>too many laws in the U.S. But I don't think naive arguments saying that a
>court cannot call witnesses by due process because the Constitution does
>not specifically have a clause saying this is the case is going to be very
>helpful or persuasive.

They just recently repealed the national 55 MPH speed limit.  Even though it 
was repealed by law, in the same way it was passed, plenty of people have 
argued that the Federal government has no jurisdiction in this area.  Those 
arguments are absolutely valid, even if they were ignored.  The danger in 
giving the government implicit authority in areas not mentioned in the 
Constitution is that it is not clear how far such justification extends.  If 
the government can limit us to 55, then why can't they limit us to 40-bit keys?

Jim Bell
jimbell@pacifier.com

At 11:47 PM 3/26/96, Jim Bell wrote:
>They just recently repealed the national 55 MPH speed limit.  Even though it
>was repealed by law, in the same way it was passed, plenty of people have
>argued that the Federal government has no jurisdiction in this area.  Those
>arguments are absolutely valid, even if they were ignored.  The danger in
>giving the government implicit authority in areas not mentioned in the
>Constitution is that it is not clear how far such justification extends.

Actually, the national government didn't even *pretend* it had jurisdiction
here.  Instead, they used an indirect approach -- they passed laws which
denied some of the existing highway funding to states with higher speed
limits than 55 MPH.  (Later this limit was raised to 65 MPH, given some
additional restrictions such as proximity to population centers.)

Any and all states were perfectly free (in theory) to ignore this "national
speed limit" and set any limit or no limit at all.  In practice, no states
exercised this hypothetical freedom, because they had already grown dependent
on highway funds provided by the national government.  Thus, through indirect
pressure exerted through the funding mechanisms, the national government was
able to usurp perogatives which were clearly in the domain of the states.

The national government has expanded greatly in size and powers in times of
war and national crisis.  In particular, FDR spearheaded the massive growth
of the national government in response to the Great Depression, and it has
continued to grow ever since.  More and more often, the national government
usurps traditional state's roles, even in situations of unquestionable state
jurisdiction such as national speed limits.  The elastic clause was one key
tool used for this expansion.

Another key tool is the commerce clause, which has been seriously abused to
secure new powers for the national government.  I don't think I'll go into it
right now...

>If the government can limit us to 55, then why can't they limit us to 40-bit
>keys?

The national government didn't impose 55 MPH speed limits on us, the states
did it under national pressure.  As for whether they can legitimately limit
cryptography use and technology, we don't have any clear answer yet, in any
legal precedent.  Of course, most of us hold the opinion that cryptography
should be considered Constitutionally protected as free speech, but politics
get involved when these things get decided...

Deven