An Attempt to Hobble SAFE Crypto Bill

---------- Forwarded message ----------
Date: Fri, 25 Jul 1997 11:03:33 -0800
From: "--Todd Lappin-->" <telstar@wired.com>
To: fight-censorship@vorlon.mit.edu


http://www.wired.com/news/news/politics/story/5492.html


An Attempt to Hobble House Crypto Bill

 by Rebecca Vesely

 9:08am  25.Jul.97.PDT A Republican opponent of a House
 bill that would loosen controls on the use and export of
 encryption is circulating an amendment that would
 effectively cripple the legislation.

 The amendment, by Representative Benjamin Gilman
 (R-New York), who chairs the International Relations
 Committee, would make it unlawful to "manufacture,
 distribute, sell, or import any product within the United
 States that can be used to encrypt communications or
 information if the product does not permit the real-time
 decryption of such encrypted communications or
 information."

 This means that if law-enforcement officials could not
 crack an encrypted file within 24 hours - the time that FBI
 director Louis Freeh and other law enforcement officials
 say is reasonable for accessing information related to a
 crime - that strength of encryption would be illegal. The
 amendment set a civil penalty of US$100,000 for such
 violations.

 Currently, the most complex programs that can be cracked
 so quickly use 40-bit algorithms. The relative ease of
 breaking such code makes it nearly worthless on the
 marketplace, the high-tech industry has warned. Stronger
 encryption - 56-bit and 128-bit algorithms are being
 employed in many products now - is widely viewed as a
 cornerstone to the development of electronic commerce.
 Stronger code can safeguard data such as credit-card
 numbers as it travels over networks.

 Gilman had the amendment in hand earlier this week when
 his panel marked up the Security and Freedom through
 Encryption Act by Representative Bob Goodlatte
 (R-Virginia). The bill has been condemned by the
 government's chief law-enforcement and national-security
 officials because it would prevent domestic controls on
 encryption while relaxing export controls. The FBI and
 National Security Agency want a domestic key-recovery
 system to wiretap digital communications.

 Gilman was unsuccessful in trying to insert another
 provision during the mark-up - one to give the president
 the power to deny crypto export licenses on
 national-security grounds.

 "The second amendment was a staff proposal that basically
 was dependent on what happened to the first amendment,"
 said Jerry Lipson, spokesman for the House International
 Relations Committee. "There was no sentiment that this one
 should be introduced when the first one failed."

 A staffer for a congressman who supports the Goodlatte bill
 said that the new amendment was a "scare tactic" meant to
 show committee members that law enforcement won't stand
 for a relaxed approach to encryption policy. Indeed, FBI
 director Freeh met one-on-one with 10 International
 Relations panel members for hour-long sessions in the days
 before the mark-up, the staffer said. Nine of the 10 voted
 for the bill anyway.

 Some staffers and observers suggest that the Gilman
 amendment could be introduced when the bill goes to the
 Select Committee on Intelligence. Although the legislation
 has 214 co-sponsors in the House, none are members of
 that panel. And the bill still must reach two other
 committees before it goes to a full House vote: Commerce
 and National Security. The deadline for all committees to
 address the bill is 5 September.

"They don't draft amendments like this for the heck of it,"
 said Alan Davidson, staff counsel for the Center for
 Democracy and Technology. "It's a glimpse at what could be a
 very frightening future."


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 All rights reserved.

: http://www.wired.com/news/news/politics/story/5492.html
: 
: 
: An Attempt to Hobble House Crypto Bill
: 
:  by Rebecca Vesely
: 
:  9:08am  25.Jul.97.PDT A Republican opponent of a House
:  bill that would loosen controls on the use and export of
:  encryption is circulating an amendment that would
:  effectively cripple the legislation.
: 
:  The amendment, by Representative Benjamin Gilman
:  (R-New York), who chairs the International Relations
:  Committee, would make it unlawful to "manufacture,
:  distribute, sell, or import any product within the United
:  States that can be used to encrypt communications or
:  information if the product does not permit the real-time
:  decryption of such encrypted communications or
:  information."

This is interesting in a perverse sort of way.  Notice that it does
not purport to forbid the _use_ of strong crypto.  Is software---
especially if it is not for sale, but just given away---a product?
Does writing software amount to manufacturing it?  

It actually does a very nice job of raising the first amendment issues
that are ultimately going to kill export controls, as well as import
controls, as applied to software.  It would seem that, unless one
believes that the first amendment only protects pornographers, but not
programmers, that this proposed legislation is either (i) blatantly
unconstitutional or (ii) totally ineffective (since, if it is not
unconstitutional, it could not be applied to the writing, distributing,
importing, or even selling of those texts that we call programs.)

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

At 12:22 PM -0700 7/25/97, Peter D. Junger wrote:

>This is interesting in a perverse sort of way.  Notice that it does
>not purport to forbid the _use_ of strong crypto.  Is software---
>especially if it is not for sale, but just given away---a product?
>Does writing software amount to manufacturing it?
>
>It actually does a very nice job of raising the first amendment issues
>that are ultimately going to kill export controls, as well as import
>controls, as applied to software.  It would seem that, unless one
>believes that the first amendment only protects pornographers, but not
>programmers, that this proposed legislation is either (i) blatantly
>unconstitutional or (ii) totally ineffective (since, if it is not
>unconstitutional, it could not be applied to the writing, distributing,
>importing, or even selling of those texts that we call programs.)

I agree. Far better to have a law "so bad, so blatantly unconstitutional"
that it _must_ be struck down, thus giving freedom to encrypt as one wishes
the endorsement it needs.

The Beltway Bandits need to resist the temptation to "work the issues" and
help craft a compromise bill which is still bad but not nearly so blatantly
unconstitutional, as this might do some real mischief by delaying the
overturning for many years.

(And, in my opinion, the modern American system is filled with thousands of
examples of laws inconsistent with original Constitutional intent, but not
so blatantly clearcut that the Supremes would have to act. The "death of a
thousand cuts," or the "frog in boiling water," whatever metaphor one
prefers.)

Better that the "cyber rights" groups simply take an absolutist stance on
all of these issue, about cryptography, labelling, etc.

And no legislation is needed, as the Constitution is pretty clearcut on the
basic issues.

--Tim May


--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."

Tim May <tcmay@got.net> wrote:

 > (And, in my opinion, the modern American system is filled
 > with thousands of examples of laws inconsistent with
 > original Constitutional intent, but not so blatantly
 > clearcut that the Supremes would have to act. The "death of
 > a thousand cuts," or the "frog in boiling water," whatever
 > metaphor one prefers.)

The Supremes can easily dismiss the Constitution any time they
like by using the magic phrase "Society's Overwhelming Interest."

We saw a good example of that today, in a ruling which said that
Society's Overwhelming Interest in protecting its citizen(-unit)s
outweighed the right of specific terminally ill citizen(-unit)s
to smoke marijuana to relieve intractable pain.

Even the First Ammendment falls victim to this phrase when the
Supremes rule that Society's Overwhelming Interest in protecting
its children makes it possible to commit a felony using only a
Playboy, a Jack and Jill, scissors, and a piece of scotch tape.

Similar arguments come out of the Court all the time about
Society's Overwhelming Interest in "preserving the family,"
"protecting children," "empowering parents," "thwarting
terrorists", and generally preserving the right of the state to
rule, to execute, to collect taxes, and to rip out the spleen of
anyone who publicly objects.

Those who regard the Supreme Court as some sort of inviolable
bulwark surrounding our First Ammendment crypto rights are
probably setting themselves up for a rude awakening in the not so
near future.

--
     Mike Duvos         $    PGP 2.6 Public Key available     $
     enoch@zipcon.com   $    via Finger                       $
         {Free Cypherpunk Political Prisoner Jim Bell}

Peter D. Junger wrote:

> It actually does a very nice job of raising the first amendment issues
> that are ultimately going to kill export controls...

Yeah, eventually.  Judge Nugent sure is taking his time with it...

Welcome to the USA...please check your keys at the door.

(Or you will be violated)

>  This means that if law-enforcement officials could not
>  crack an encrypted file within 24 hours - the time that FBI
>  director Louis Freeh and other law enforcement officials
>  say is reasonable for accessing information related to a
>  crime - that strength of encryption would be illegal. The
>  amendment set a civil penalty of US$100,000 for such
>  violations.

Defence counsel: Your honour the FBI agent could have cracked my 
clients grocery list within 24 hours if he hadn't taken a long lunch 
break at Hooters Topless Bar & Grill and not overlooked that he was 
running his NifTY War3Z crAk3R v0.3 against the wrong file.

Prosecutor: Could not

Defence: Could so

Prosecutor: Irrelevant your auspiciousness, the fact is the grocery 
list was not decrypted in 24 hours.

Judge: I sentence the defendant to $100 000 penalty or in default 15 
years at a federal re-education facility.

Defence: But your worthiness it was only a $35 grocery list!

Judge: Anyone seen my gavel?
-- 
   .////.   .//    Charles Senescall             apache@quux.apana.org.au
 o:::::::::///     apache@bear.apana.org.au  apache@gargoyle.apana.org.au
>::::::::::\\\     Finger me for PGP PUBKEY            Brisbane AUSTRALIA
   '\\\\\'   \\    Apache