Re: Final Solution to the Crypto Problem

Tim May wrote:

>Namely, once the infrastructure is deployed, once most electronic commerce
>is handled via card tokens (and card readers are actually pretty cheap, and
>volume will drive the price down further), the President can cite some kind
>of national emergency, or widespread tax evasion, or whatnot, to announce
>that beginning on suc-and-such a date all cards must be licensed, even to
>domestic users.

Not to diminish the validity of Tim's alarm, is there not reason to
anticipate that
these tokens will be crackable. And thus continue the race between crypto 
enforcers and crackers?

In addition to the recent successes against smart cards, there seems to be 
trouble with the government's program for widespread use of Fortezza cards, 
according to complaints of various military and civilian sites. The Fortezza
site at ljl.com seems to have been set up so that open, easily accessible
information could be gotten by the harried military users (see, for example,
the list of Fortezza complaints at http://infosec.nosc.mil ).

Moreover, there is surely to be continued competition among the players
who are trying to increase their market share -- both government and
commercial, both domestic and international. Will they not continue to 
attack each other's crypto products? And will not each nation's government
continue to subsidize their favored producers in international economic and
military contentions?

The point is made on cypherpunks that the odds are increasingly on the 
crackers even if there are periodic gains by behind-the-scenes plots among
the enforcers and there temporary allies (as Tim notes, these are often short-
term romances). And that hardware systems are the most vulnerable due 
to their illusory physical security -- the fatal conceit that brawn can beat 
brains in crypto, as it claims it used to do in iron- and fire-power (that was
before iron became subservient to code).

Finally, take a look at the history of these "emergency" Executive Orders 
outlined in No. 12924 posted by Peter Junger. Then look at the predecessors 
to those at www.house.gov. They go back through several administrations 
and confirm what Hal first raised: there is a concerted effort to get around 
accountability for the continuation of the so-called emergency, and 
successive Congresses have been complicit in the camouflage.

I think it's apparent that the events of Friday, with the other shoe to
drop on Monday (the H-P/Intel/Microsoft/etc. Final Capitulation), signal to
us that we are in a State of Emergency.

The Presidents of this country are in the habit of declaring such States of
Emergency, often essentially secretly (in that the sheeple know little of
such things, and those who speak of NSDDs and PDDs and EOs are demonized by
the media as "conspiracy nuts" and "militia members").

Maybe it's time for us to stop flaming about Vulis and his allies, and
concentrate on the Real War.


At 8:17 PM -0500 11/16/96, John Young wrote:
...
>Not to diminish the validity of Tim's alarm, is there not reason to
>anticipate that
>these tokens will be crackable. And thus continue the race between crypto
>enforcers and crackers?

Well, don't misunderstand me. I'm not saying "Give up."

In fact, the transparent nature of the government's "voluntary key escrow
for domestic users" strategy should cause redoublings and retriplings of
our efforts.

As John's SWAN program emphasizes, there still are no _import restrictions_
on crypto (and there may be severe constitutional impediments, as we've
debated several times). Get enough alternate channels using non-GAK crypto,
and even the latest Clipper won't succeed.

And sabotaging the GAK scheme in more devious ways remains an option. (I
hear some nym on BlackNet is still bidding $125,000 payable to any offshore
account for certain details related sabotaging GAK.)


"The government announcement is disastrous," said Jim Bidzos,.."We warned IBM
that the National Security Agency would try to twist their technology."
[NYT, 1996-10-02]
We got computers, we're tapping phone lines, I know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1,257,787-1 | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

I would like to dampen a little of the panic and FUD that seems to be
breeding on the question of the "national emergency" declared to keep the
bulk of the Export Administration Act regulations in effect after the
statute itself lapsed by its own terms.  [Note, by the way, that the EAA
rules are the *mild* ones.  The *tough* ones are still in force and are
not going away ... kill the EAA rules, and they start reclassifying
everything back to the Military List?]

Whether you like it or not, Congress has delegated to the President
sweeping authority to declare "national emergencies" due to foreign
threats.  In wartime the authority is very extensive; in peacetime almost
as great.  The authority is found in the "International Economic Emergency
Powers Act" (IEEPA).  While the President's determination that an
"emergency" exists is not reviewable, actions taken under IEEPA authority
*are* reviewable, indeed more reviewable than acts taken under the export
control laws. Of course since the delegation of power is broad, it's often
hard to win.

There have been LOTS of Presidential declaration of "emergencies" under
IEEPA and its predecessor statutes (e.g.the "trading with the enemy act",
which still applies in wartime).  Indeed, there are fewer today than
before Congress attempted to reform the system and required most of the
large number of emergencies in force to cease.  For example, every time
the President orders an embargo, e.g. against Iran, the statute requires
that he first declare an "emergency".

My point is not that Congress was wise to give the President this power. 
That's debatable; it's even more debatable that the intent was for it to
be quite as broad as the courts have found it to be (see e.g. Harold Koh's
book, The National Security Constitution, for more info). 

And, the point is not that Presidents are using this power in a wise or
measured way.  It's obvious that they are not.   At any given time
since WWI, many many (too many) "national emergencies" have been in force.

And, the point is especially not that this President was wise to declare
an emergency on these facts (although in his defense, several previous
presidents did exactly the same thing when previous editions of the EAA
lapsed; it seems to be something of a tradition...). 

Rather, my point is a simple one.  The fact that the President has
declared an emergency here is primarily a technical legal event.  It is
not a sign that martial law is about to be declared, that they are coming
to take you or your [fill in blank] away, or that anything fundamental has
changed.  Multi-year emergencies in which the executive uses one statute
to compensate for the Congressional decision/failure to pass another
statute is not, I submit, a particularly telling sign of a mature and
healthy democracy.  But this goes to large and gradual processes, not to
anything that suddenly happened. 

Again, for some background on all this, written before the Nov. 15
anouncements, see 
http://www.law.miami.edu/~froomkin/articles/planet_clipper.htm#POSTSCRIPT

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506(fax) 
Associate Professor of Law |
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm here.

Cpunks has become an existance proof that the benefits of anarchy are
not worth the price.  Aga, Vultis, it's a damned shame your parents
didn't teach you not to shit where you live.
-- 
  ``I tell you, we are here on earth to fart around, and don't let anybody
tell you any different.''
	Kurt Vonnegut, quoted in Harpers (11-95)