Senate panel nixes ProCODE II, approves McCain-Kerrey bill

In the end, it was child pornography that derailed
encryption legislation in the U.S. Senate and dealt a
bitter defeat to crypto supporters. Spurred by the
chairman's denunciations of cyberporn, a majority of
the Senate Commerce Committee rejected ProCODE II this
morning -- and instead approved a bill introduced
earlier this week that creates new Federal crimes for
some uses of crypto and an all-but-mandatory key
escrow infrastructure.

Sen. John McCain (R-Ariz.), committee chair and chief
sponsor of the measure, led the attack, saying
Congress must "stop child pornography on the Internet
and Internet gambling. These legitimate law
enforcement concerns cannot and should not be
overlooked or taken lightly."

He warned that allowing encryption to be exported
would permit child pornographers to use it. "If it's
being used for child pornography? Are we going to say
that's just fine? That's it's just business? I don't
think so."

Then Sen. Kay Bailey Hutchinson (R-Tex.) chimed in,
saying she doesn't want "children to have access to
pornography or other bad types of information."

Sen. John Ashcroft (R-MO) tried to disagree. "It's like
photography. We're not going to [ban] photography if
someone takes dirty pictures." (At this point, one of
the more deaf committee members asked, "Pornography?
Are we going to ban pornography?")

Between the child-porn attack team of senators McCain,
Hollings, Kerry, and Frist, ProCODE sponsor Sen. Sen.
Conrad Burns (R-Mont.) didn't stand a chance. Hunched
over the microphone, Burns was outmaneuvered,
outprepared, and outgunned on almost every point.

Nevertheless, he introduced ProCODE II -- a so-called
compromise measure -- and was defeated 8-12. The
changes from ProCODE I gave the NSA, FBI, and CIA
oversight over crypto exports and permitted only the
export of up to 56-bit crypto products without key
escrow. Products of any strength with key escrow could
be exported freely.

That's hardly a pro-privacy, pro-encryption bill, says
the ACLU's Don Haines. "The ProCODE vote shows the
political bankruptcy of the pro-business agenda. Even
in the Commerce Committee, commerce arguments didn't
work," he says.

The committee also approved amendments proposed by
Kerry that would give jurisdiction over crypto exports
to a nine-member "Encryption Export Advisory Board."
The panel would "evaluate whether [a] market exists
abroad" and make non-binding recommendations to the
president.

Frist also introduced amendments to the McCain-Kerrey
bill that were accepted:

* Requiring that not any Federally-funded
  communications network, but only ones established "for
  transaction of government business" would use key
  escrow -- thereby jumpstarting the domestic market.

* "Requirements for a subpoenas [sic] should be no
  less stringent for obtaining keys, then [sic] for any
  other subpoenaed materials."

* Key recovery can mean recovering only a portion of
 the key "such as all but 40 bits of the key."

* NIST after consulting with DoJ and DoD will "publish
  a reference implementation plan for key recovery
  systems;" the law will not take effect until the
  president tells Congress such a study is complete.

After the vote, advocacy groups tried to put a good
face on the devastating loss -- and an expensive
defeat it was. After 15 months of lobbying, countless
hearings, backroom dealmaking, and political capital
spent, ProCODE is gutted and dead. "There's another
day. We have confidence in the system," said BSA's
Robert Holleyman. CDT's Jerry Berman said, "What is
encouraging is that unlike the CDA other committees
are getting involved."

Of course, the involvement of other committees is only
likely to add more key escrow provisions and
limitations on crypto-exports. ProCODE's replacement
-- the McCain-Kerrey bill -- now goes to the Senate
Judiciary committee, and its chairman has already been
talking about mandating key escrow in some
circumstances...

-Declan



-------------------------
Declan McCullagh
Time Inc.
The Netly News Network
Washington Correspondent
http://netlynews.com/

Declan McCullagh <declan@well.com> writes:

 > Sen. John McCain (R-Ariz.), committee chair and chief
 > sponsor of the measure, led the attack, saying Congress
 > must "stop child pornography on the Internet and Internet
 > gambling. These legitimate law enforcement concerns cannot
 > and should not be overlooked or taken lightly."

This is of course an interesting suggestion, since most underage
erotica and gambling on the Net aren't encrypted in the first
place.  It reminds me of one Islamic country where the leaders
introduced television by reading the Koran over it, daring
critics to attack something that could be used to transmit the
word of God.

We have much the opposite situation here in the United States,
where any new technology is immediately judged by whether it can
be used to transmit pictures of naked children, or thwart
attempts by law enforcement to stamp them out.

 > He warned that allowing encryption to be exported would
 > permit child pornographers to use it.

Perhaps by "Child Pornographers," the good Senator means those
legally producing erotica in countries where the permissible age
is 16 or 17, as opposed to the US-Mandated Official Age of
Adulthood and Full Responsibility(tm) of 18.

Countries where, of course, would-be child pornographers use only
quality American encryption, the population of such nations being
so busy pornographing that they have no time to develop strong
encryption products of their own.

 > (At this point, one of the more deaf committee members
 > asked, "Pornography? Are we going to ban pornography?")

A memorable moment, I am sure, comparable to when Senator
Hollings attempted to pronounce "Beavis and Butt-Head."

 > After the vote, advocacy groups tried to put a good face on
 > the devastating loss -- and an expensive defeat it was.

You really can't fight Congress.  Ten minutes after you defeat a
bill and spend all your resources, it will be back on the floor
under another name and the whole thing will start over again.
After you defeat that one, you will discover that the text of the
measure got passed late one night as an ammendment to something
completely unrelated.

The government has infinite resources to harp incessantly on
anything until they engineer consent for it and get what they
want. Resistance is Futile.  You will be Assimilated.

 > "There's another day. We have confidence in the system," said
 > BSA's Robert Holleyman. CDT's Jerry Berman said, "What is
 > encouraging is that unlike the CDA other committees are getting
 > involved."

These two should be the first up against the wall when the
revolution comes.

On an unrelated note, after posting just ONE message to
cypherpunks from my new Zipcon account, my mailbox is beginning
to swell with Unsolicited Bulk Email.

--
     Mike Duvos         $    PGP 2.6 Public Key available     $
     enoch@zipcon.com   $    via Finger                       $

One of the reasons I've been so skeptical that legislative fixes will work
to protect our access to free and unfettered strong, unbreakable
cryptography is because I knew strong crypto *really would* do the things
McCain, Kerrey, Hollings, Freeh, Clinton, Reno, and all of those folks are
fretting about.

I mean, come on! This is what crypto anarchy is all about!

With it will of course come unbreakable communications channels for bank
robbers, terrorists, child pornographers, money launderers, and all the
rest of the bogeymen. How could it be otherwise?

Ditto for untraceable digital cash. Chaum may waffle on this issue, and
even say completely unfounded things about how maybe there will be ways to
separate "good" untraceable transaction capabilities from "bad" ones, but
we all know this is just shuck and jive.

Ditto for anonymous remailers. Ditto for data havens. Ditto for DC-Nets.
Ditto for all the good stuff.

We know it. Some of them know it. And claiming that this stuff won't happen
is disingenuous.

(Off point a bit. I was just looking at some of the analyses of the S.909
McCain-Kerrey language, the one that passed today, and was struck by how
_dangerous_ some of the analyses are. They critique M-K on some grounds of
flawed linkages between CAs and keys, and so on. Well, would the underlying
problems with M-K be fixed if these linkages were fixed? Not to me. The
only way to defeat M-K is to throw it out completely, not quibble on fine
points.)

Anyway, they're figuring out what we've known for several years, even
longer. And they're lashing out.

Pro-CODE never had a real chance. No legislature is going to pass a law
making crypto anarchy, black markets, and unfettered pornography a reality.

We have to discard concern for "politics" and refocus our efforts on our
original strength: monkeywrenching the system with technology.

--Tim May

There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
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: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

On Thu, 19 Jun 1997, Tim May declared:

> We have to discard concern for "politics" and refocus our efforts on our
> original strength: monkeywrenching the system with technology.

Date: Sat, 14 Jun 1997 13:45:54 +0200
From: Rinaldo RASA <rasa@GPNET.IT>
Reply-To: Bohemian  The Mailing List of the Bohemian Ink
Subject: John Cage on Anarchism.

"We don't need government
We need utilities.

Air, water, energy
Travel and communication means
Food and shelter.

We have no need for imaginary mountain ranges
Between separate nations.

We can make tunnels through the real ones.

Nor do we have any need for the continuing division of people
Into those who have what they need
And those who don't.

Both Fuller and Marshal McLuhan
Knew, furthermore
That work is now obsolete.
We have invented machines to do it for us.

Now that we have no need to do anything
What shall we do?

Looking at Fuller's geodesic world map
We see that the Earth is a single island, Oahu.
We must give all the people all they need to live
In any way they wish.

Our present laws protect the rich from the poor.

If there are to be laws, we need ones that
Begin with the acceptance of poverty as a way of life.

We must make the world safe for poverty
Without dependence on government."

On Thu, 19 Jun 1997, Declan McCullagh wrote:

[...]

> * Requiring that not any Federally-funded
>   communications network, but only ones established "for
>   transaction of government business" would use key
>   escrow -- thereby jumpstarting the domestic market.

Would this include militry networks?  I'm shaw the militry securaty
experts are going to be very happy about being required to eskow there
keys.


Please excuse my spelling as I suffer from agraphia see the url in my header. 
Never trust a country with more peaple then sheep.  Buy easter bilbies.
Save the ABC Is $0.08 per day too much to pay?  ex-net.scum and prouud     
I'm sorry but I just don't consider 'because its yukky' a convinceing argument

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

At 04:18 PM 6/19/97 -0400, Declan McCullagh wrote:

>morning -- and instead approved a bill introduced
>earlier this week that creates new Federal crimes for
>some uses of crypto and an all-but-mandatory key
>escrow infrastructure.

Those of us who choose not to use federal networks and federal CAs will be 
unaffected.  I prefer cheap foreign CAs myself.

DCF
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At 1:18 PM -0700 6/19/97, Declan McCullagh wrote:

>That's hardly a pro-privacy, pro-encryption bill, says
>the ACLU's Don Haines. "The ProCODE vote shows the
>political bankruptcy of the pro-business agenda. Even
>in the Commerce Committee, commerce arguments didn't
>work," he says.

This of course was the crux of my criticism of SAFE, and to a lesser
extent, Pro-CODE, and of the nominally pro-liberty groups like EPIC and
CDT. They supported "business friendly" bills, perhaps catering to their
telecom and computer industry contributors, and did not take a strong civil
libertarian stance.

The whole system is corrupt.

The only hope now is the Junger and Bernstein cases, the hope being that
the Supreme Court will eventually rule in one or both of these cases that
encrypted speech is just a form of speech and that the First Amendment
protects such speech, even on networks partially funded by the Federal
government.

(Gee, nearly all highways receive Federal funds, due to the way the tax
monies are collected and then disbursed. Does this mean the government can
regulate speech in any care travelling on any highway even partly built or
operated with Federal funds? Think about the parallels.)

The whole system is corrupt.

--Tim May

There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
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: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

At 3:51 PM -0700 6/19/97, Mike Duvos wrote:

>You really can't fight Congress.  Ten minutes after you defeat a
>bill and spend all your resources, it will be back on the floor
>under another name and the whole thing will start over again.
>After you defeat that one, you will discover that the text of the
>measure got passed late one night as an ammendment to something
>completely unrelated.
>
>The government has infinite resources to harp incessantly on
>anything until they engineer consent for it and get what they
>want. Resistance is Futile.  You will be Assimilated.

Precisely. This "wear them out" strategy has been obvious from the beginning.

As has been the invocation of the Four Horsemen of the Infocalypse, used
increasingly to get anything passed.

The "war" many of us have known was coming is upon us.

There's no hope in negotiating for a compromise with them.

--Tim May

There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
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: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

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

At 04:18 PM 6/19/97 -0400, Declan McCullagh wrote:
>After the vote, advocacy groups tried to put a good
>face on the devastating loss -- and an expensive
>defeat it was. After 15 months of lobbying, countless
>hearings, backroom dealmaking, and political capital
>spent, ProCODE is gutted and dead. "There's another
>day. We have confidence in the system," said BSA's
>Robert Holleyman. CDT's Jerry Berman said, "What is
>encouraging is that unlike the CDA other committees
>are getting involved."

Anyone mentally retarded enough to expect a congresscritter to protect one's 
rights deserves everything they get.  "Advocacy groups" could have better 
spent their time litigating crypto and encouraging the use of strong crypto 
by themselves and their supporters.

DCF


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At 06:30 PM 6/19/97 -0700, Tim May wrote:
>This of course was the crux of my criticism of SAFE, and to a lesser
>extent, Pro-CODE, and of the nominally pro-liberty groups like EPIC and
>CDT. They supported "business friendly" bills, perhaps catering to their
>telecom and computer industry contributors, and did not take a strong civil
>libertarian stance.

Yup.  Not that any bill requiring NSA/CIA/FBI approval for export is
particularly business friendly, even for crypto software business
(much less for people in the speech and artwork businesses), of course...

>(Gee, nearly all highways receive Federal funds, due to the way the tax
>monies are collected and then disbursed. Does this mean the government can
>regulate speech in any car travelling on any highway even partly built or
>operated with Federal funds? Think about the parallels.)

You mean people might be required to get a license to travel on
government-funded roads, and be forced to demonstrate it to any cop who asks?
Or need a license to fly in non-government-funded air, or need to show
government-issued ID to travel on government-licensed airlines?
Americans would never stand for that sort of abuse!  
(As you said, "The whole system is corrupt".)  

There have been exceptions - the Alvarado-Sanchez case, in which the
Supremes decided that police had not had sufficient reason to stop
a truck traveling near but parallel to the US/Mexican border,
and therefore no right to start poking flashlights in the windows,
and no right to order the driver to open the tarp covering
half a ton of marihuana.  Or for that matter the Miranda case,
or Brown vs. Texas (you don't have to give your name even if they
arrest and book you...)  But mostly, it's corrupt, and 
every "compromise" just ratchets down the amount of freedom we have.



#			Thanks;  Bill
# Bill Stewart, +1-415-442-2215 stewarts@ix.netcom.com
# You can get PGP outside the US at ftp.ox.ac.uk/pub/crypto/pgp
#   (If this is a mailing list or news, please Cc: me on replies.  Thanks.)

At 09:13 PM 6/19/97 -0400, frissell@panix.com wrote:
>Anyone mentally retarded enough to expect a congresscritter to 
>protect one's rights deserves everything they get.  
>"Advocacy groups" could have better spent their time litigating crypto 
>and encouraging the use of strong crypto by themselves and their supporters.

While Duncan's mostly right about CONgresscritters, 
there's still a place for lobbying, as well as for litigation and coding.

The EFF and other lobbying groups have bought us about 5 years,
stalling bills like S.266 which would have banned most crypto,
though they've also let through some things like Digital Telephony
which aren't effectively implemented yet.  Without the pro-freedom
lobby groups, the anti-privacy groups have Freeh rein on the Hill,
and can get away with labelling any privacy technology as such
commie-child-porn-narcoterrorist-anti-motherhood-five-six-seven-horsemen EVIL
that the average Congresscritter (who doesn't really care, and knows it)
knows it's not safe to not to vote against it.  Of course, there are
even scarier Congresscritters (the ones who really _mean_well_),
but even the heavily-compromising groups that get funded by big corporations
to say things the corporations can't always say themselves
have helped.

Technology growth wins, gridlock is good, and delays in Congress are your
friend.
The 5 years they've bought us have been critical, letting us deploy
more technology, and understand its limits better, as Moore's law
has brought PCs into almost everyone's budget range, the Web has brought
networking into 30 million Americans' homes (and WebTV and the like
will reach even more couch potatoes), and the <&*&!#%> patents are running
out.
That Pentium 133 that you can get for the price of a fancy TV
looks a lot like the Cray 1 without the air conditioner, runs faster 
than an IBM 370, and the 28.8 modem can carry almost as much data
on your phone line as the expensive leased lines that the companies
who used IBM 370s a decade ago connected them together with.


#			Thanks;  Bill
# Bill Stewart, +1-415-442-2215 stewarts@ix.netcom.com
# You can get PGP outside the US at ftp.ox.ac.uk/pub/crypto/pgp
#   (If this is a mailing list or news, please Cc: me on replies.  Thanks.)