Re: Bernstein hearing: The Press Release

At 02:03 PM 9/18/96 -0700, John Gilmore wrote:
>Judge Patel to Decide if Government Restrictions on 
>Cryptography Violate the First Amendment
>San Francisco, CA -- On Friday, September 20, 1996, Judge Marilyn Hall
>Patel will hold hearings in a case with far-reaching implications for
>personal privacy, U.S. competitiveness, and national security.  Mathematician 
>Daniel J. Bernstein, a Research Assistant Professor in the Department of 
>Mathematics, Statistics and Computer Science at the University of Illinois at 
>Chicago, has sued several Federal agencies on the grounds that the 
>agencies' requirement that he obtain a license prior to publishing his 
>ideas about cryptography violates his First Amendment right to freedom 
>of speech.
[trimmed]
>LEGAL ARGUMENTS
>
>*       Any legal framework that allows a government bureaucrat to 
>censor speech before it happens is an unconstitutional prior restraint.  
>The government is not allowed to set up such a drastic scheme 
>unless they can prove that publication of such information will 
>"surely result in direct, immediate, and irreparable damage to our 
>Nation or its people" and that the regulation at issue is necessary 
>to prevent this damage. 

At the risk of being a devil's advocate, let me suggest that you are 
conceding too much even with the preceding paragraph.  The 1st amendment 
says nothing about preventing speech  which (even admittedly) would result 
in "direct, immediate, and irreparable damage to our nation or its people."

Indeed, if you follow the news over the last 5-10 years, you see numerous 
examples of news items getting publicized (sometimes 30-40 years late) which 
might arguably have cause "irreparable damage."  That recent revelation 
about the POWs being left in Korea would have been one such example.  The 
intentional detonation of that H-bomb in 1954, knowing that prevailing winds 
would shower thousands of people with fallout was another.  The US 
military's experimentation with chemical weapons on our own people after 
WWII is another.  The fraud of the Gulf of Tonkin Resolution is another.  
The Pentagon Papers incident is another.  The Tuskeegee syphillis 
experiments on blacks which ended in 1972 was another.  The massive 
pollution at decomissioned military bases.  The Iran/Contra arms smuggling 
deals, along with the cocaine smuggling stories which are more recently 
being pursued, are yet another.

I could list many more, but won't because of lack of space.  But notice 
that, presumably, each and every one of these incidents was AT ONE TIME kept 
secret, arguably because it would be better for the country to do so.  Thus, 
presumably it was thought or at least asserted that to reveal them would 
cause "damage to our nation or its people."

The way you've written the paragraph I've quoted above, it appears that you 
are somehow acknowleding that there  are certain circumstances where certain 
types of speech are controllable because they are "harmful," but you fail to 
explain how even this constitutional restiction is tolerable.    Frankly, I 
don't see it!  What you need to do is to be far more specific about such 
speech and exactly where it can be controlled.

I should point out, also, that this is the second time I've mentioned this.  
You're doing us a disservice if you concede too much in this area.






Jim Bell
jimbell@pacifier.com

The EFF press release on the Bernstein hearing said:
> >*       Any legal framework that allows a government bureaucrat to 
> >censor speech before it happens is an unconstitutional prior restraint.  
> >The government is not allowed to set up such a drastic scheme 
> >unless they can prove that publication of such information will 
> >"surely result in direct, immediate, and irreparable damage to our 
> >Nation or its people" and that the regulation at issue is necessary 
> >to prevent this damage. 

Jim Bell said:
> At the risk of being a devil's advocate, let me suggest that you are 
> conceding too much even with the preceding paragraph.  The 1st amendment 
> .... [long discussion] ....

The wording there is taken directly from the controlling Supreme Court
case, which I believe is the Pentagon Papers case.  The example used
in that case was the departure date and route of a ship carrying US
troops to war.  The government could sue people who threatened to
publish such information, prior to publication, and have some chance
of winning the case.  It's not a guarantee, just a pre-qualification.
The idea is that if they CAN'T show such a danger, they have NO chance
of winning.

The Supreme Court didn't even say that publishing the sailing dates
of troop transports *could* be prior-restrained.  What they said was
that they would consider such a case if it ever got to them.  Cases
which didn't meet such a high standard should just be taken care of
by the lower courts.

We aren't conceding anything.  We're pointing out that the
export control law doesn't even meet the standard that the supreme
court has already set for laws like this.

You might want to hold the government to a higher standard than the
threshold they set in the Pentagon Papers case.  Myself, I think they
did an excellent job, especially considering that it was wartime and
that the document the New York Times wanted to publish was classified
but had been leaked.  They didn't permit the government to
prior-restrain publication of it ANYWAY.  The "direct, immediate and
irreperable damage" phrase was them merely trying to think up a
hypothetical document that they MIGHT allow prior restraint to apply
to.

My opinion on criminal and civil law is quite different from the
Supreme Court's.  Still, I am working on having the Supreme Court
confirm my opinion in a particular area -- that of the crypto export
control laws.  I'd rather bring them a nice simple case that focuses
on just one thing.  It's a lot easier for them to decide about the 
thing I really care about, if it doesn't bring in extraneous factors
like exactly where the line should be for permitting prior restraint.

The Supreme Court would ignore the prior restraint line issue anyway,
because it isn't a factor in this case.  The government isn't arguing
that they have the right to prior-restrain us because of direct,
immediate and irreperable damage.  Instead they argue that the
publication itself is being controlled only for its function, not for
the content of the publication, and therefore in controlling the
function, they can "incidentally" control the publication.  And if
they can legitimately control the speech, then what's all this fuss
about prior restraint when it's punishable speech anyway?  This is the
set of issues that the Supreme Court would tend to look at.

	John

PS:  I'm not a lawyer, and I didn't ask a lawyer to read this over,
so I might have some parts wrong.

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On Sat, 21 Sep 1996, jim bell wrote:

> At the risk of being a devil's advocate, let me suggest that you are 
> conceding too much even with the preceding paragraph.  The 1st amendment 
> says nothing about preventing speech  which (even admittedly) would result 
> in "direct, immediate, and irreparable damage to our nation or its people."

I believe there is one section in the Constitution that says that speech
harmful to national security is not protected under the 1st amendment.  However,
I don't agree with this provision at all.  "National security" is a phrase that
is applied to anything from information on the JFK assassination to DES source
code.

> I could list many more, but won't because of lack of space.  But notice 
> that, presumably, each and every one of these incidents was AT ONE TIME kept 
> secret, arguably because it would be better for the country to do so.  Thus, 
> presumably it was thought or at least asserted that to reveal them would 
> cause "damage to our nation or its people."

If secret information was released, it would cause most people to completely
lose respect for the government (some people call this damage -- I call it
progress).

> 
> The way you've written the paragraph I've quoted above, it appears that you 
> are somehow acknowleding that there  are certain circumstances where certain 
> types of speech are controllable because they are "harmful," but you fail to 
> explain how even this constitutional restiction is tolerable.    Frankly, I 
> don't see it!  What you need to do is to be far more specific about such 
> speech and exactly where it can be controlled.

There may be certain circumstances under which speech can be directly harmful.
Military operations and missle launch codes are things that should be kept
secret.  Information about high-powered weapons should be too.  If the Japanese
had been able to get information about how to build A-bombs during WWII, major
cities in the U.S. probably would have been completely wiped out.  I don't like
the idea that the government has the power to decide what's harmful and what
isn't, but there are beneficial uses of the provision.

Mark
- -- 
PGP encrypted mail prefered.
Key fingerprint = d61734f2800486ae6f79bfeb70f95348
http://www.voicenet.com/~markm/

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