Re: CDT Policy Post 2.27 - No New News on Crypto: Gore Restates

At 10:17 AM 7/14/96 -0700, David Sternlight wrote:
>At 7:05 AM -0700 7/13/96, Deranged Mutant wrote:

>>This is particularly problematic... if the mainland Chinese gov't
>>requested a key from a N.Amercian or European (or even UN controlled)
>>escrow agency, who is to say it isn't really for political reasons
>>(even though they may claim the persons are drug smugglers)?
>>
>>Or what if the 'crime' was, say, discussing Mormon beliefs, which is
>>illegal in Singapore (and I think Russia as well)?
>>
>>Or what if some terrorist was using keys escrowed in a country that
>>sponsered terrorist acts?
>
>Your best shot would be to make sure the part about the system being
>voluntary was hard-wired into any legislation or rule-making. 

Wrong.  Our "best shot" is to ensure that no "key escrow" legislation is 
adopted, and moreover export restrictions on crypto are eliminated.  _THAT_ 
is "our best shot."   The obvious problem with writing "voluntary" into any 
legislation (and thinking it actually means something!)  is that there is a 
vast difference between the dictionary definition of the word "voluntary", 
and the way the USG would like to interpret it.  

I think most people define "voluntary" as something which is a free choice, 
devoid of coersion.  But that's already damaged when the government's 
involved.  Aside from robbing us of our assets in the form of taxes, the 
fact that it was able to do things like harass Phil Zimmermann for a few 
years (when, if there had been a "regulation"  concerning writing 
encryption, it would have said, "writing encryption is unrestricted and 
VOLUNTARY") clearly proves that the government tries to do manipulate us 
regardless of friendly terminology like "voluntary."

Clipper was always claimed to be "voluntary," but more recently they added 
to the restrictions, for example saying that a Clipper-type crypto phone 
can't be allowed to operate when connected to a non-escrow telephone.  
Again, the government is getting further and further away from "voluntary" 
as most of us understand the term.

More importantly, I believe that the most fundamental right the public has 
is to be able to REFUSE a benefit.  Let's suppose, hypothetically, that we 
"all" could agree that that GAK would provide net advantages and benefits to 
the public.  I assert that despite this, the public is and should still be 
completely free to _refuse_ these benefits, and to go without GAK.  This 
position, the truth of which is obvious to most of the readers of CP, would 
astonish and frustrate government employees and their sympathizers.  

Today, it appears that the vast majority of those that are paying attention 
to this issue agree that GAK is NOT desirable, and in any case they don't 
want it.  The simple conclusion is that as long as we aren't supposed to 
have a dictatorship in this country, the will of the public to _refuse_ the 
claimed benefit should be respected and followed.  Under those conditions, 
GAK wouldn't and couldn't happen.

>Unless and until ITAR is modified by Congress,

Congress didn't write ITAR, nor did it approve ITAR.   However, the Burns 
crypto bill will, apparently, negate most if not all of the influence of 
ITAR on crypto.

> the USG has what Mark Twain called "the
>calm confidence of a Christian with four aces" on this matter.

"A Smith and Wesson beats four aces."  And if the government keeps pushing, 
it'll come to this.


> That
>is--unless and until Congress acts, the Administration has absolute
>discretion with respect to the conditions under which they will liberalize
>the administration of ITAR.

That's not clear.  The _constitutionality_ of the application of ITAR to 
encryption is challengeable in court, with or without any actions by 
Congress.  So they DON'T have "absolute discretion."  Furthermore, 
regulations must (at least theoretically) conform to law.  

Jim Bell
jimbell@pacifier.com

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At 2:37 PM -0700 7/14/96, jim bell wrote:
>At 10:17 AM 7/14/96 -0700, David Sternlight wrote:
>>At 7:05 AM -0700 7/13/96, Deranged Mutant wrote:
>
>>>This is particularly problematic... if the mainland Chinese gov't
>>>requested a key from a N.Amercian or European (or even UN controlled)
>>>escrow agency, who is to say it isn't really for political reasons
>>>(even though they may claim the persons are drug smugglers)?
>>>
>>>Or what if the 'crime' was, say, discussing Mormon beliefs, which is
>>>illegal in Singapore (and I think Russia as well)?
>>>
>>>Or what if some terrorist was using keys escrowed in a country that
>>>sponsered terrorist acts?
>>
>>Your best shot would be to make sure the part about the system being
>>voluntary was hard-wired into any legislation or rule-making.
>
>Wrong.  Our "best shot" is to ensure that no "key escrow" legislation is
>adopted, and moreover export restrictions on crypto are eliminated.

Nope. That's some people's preferred shot, but may not be the best one or
even a realistic one. It's certainly a partisan political advocacy (in the
sense that people are partisan about this issue, not in the sense of a
particular political party). Yet that attitude didn't get any legislation
to stop Clipper I.

My point was very simple--if the government is going to say a system is
voluntary, make them put it in writing in the rules or legislation. We
failed to do that with Clipper I (when they said in non-rulesmaking
statements that they had no intention of making escrow mandatory--but
nobody said "OK. Put it in writing as a formal policy."). As a result, many
in government even at the higher policy-making levels are still calling for
mandatory escrow. Had it been in the rules, it's less likely they could
have overtly gone against a rules-making covenant/compromise.

It's simple pragmatic regulatory politics. It's how the system works, and
using the system itself to achieve one's goals is one of the more powerful
techniques around. You don't have to like it, but you do have to decide
whether you'd rather be "right" or get the result.

David



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