Government shows its hand...good news!

Though it's understandable why so many are expressing anger, gloom,
anxiety, and rage over the Freeh-Feinstein mandatory key escrow draft bill,
a better attitude is that of joy.

Any way it goes, this is good news for us.

If the Safe Internet Act (or whatever it is finally called)  is passed, the
Supreme Court will likely strike it down (on First and/or Fourth Amendment
grounds). This will marginalize the crypto folks, and perhaps cause the
Court to reaffirm the Patel decision and related issues.

If the Safe Internet Act is never actually proposed, or dies in committee,
or fails, then at least Big Brother's true intentions will have been shown.

Actually, this has already happened. All of those who ever expressed doubt
that Big Brother planned to ban crypto must now see we were right all along.

The remaining alternate course, that the Act is passed, and then that the
Supreme Court eventually affirms its constitutionality, is also good for
us. For it will then mean war has been declared, and various extreme sorts
of actions will then accelerate.

And that could be a lot of fun.

But I expect, in all seriousness, that the Freeh-Feinstein view will fade.
Clinton is about to enter his lame duck phase, and sentiment seems to be
against mandatory key escrow. As one ironic example, the California state
legislature has voted unanimously, both houses, to send a message to
Washington urging easing of crypto exports.

Feinswine, being a Californian, might want to heed this. But, being a
Pacific Heights socialist, er, socialite, she's too clueless to have any
inkling what the issues are.

--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> writes:

> The remaining alternate course, that the Act is passed, and then that the
> Supreme Court eventually affirms its constitutionality, is also good for
> us. For it will then mean war has been declared, and various extreme sorts
> of actions will then accelerate.
>
> And that could be a lot of fun.

Nuke Washington DC.

---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps

>>Nuke Washington DC.
>Perhaps so, but as Stalin said, paraphrasedly,
>"How many megatons do the Cypherpunks control?"
Well, cryptographers control most of them; how many of them have
become Cypherpunks is anybody's guess (low, probably, but hey....)


Autonomasia wrote:
> Joy may be an overreaction.
Well, ok, but at least a certain cheerful cynicism seems called for :-)

At 6:39 PM -0700 9/8/97, Dr.Dimitri Vulis KOTM wrote:
>Tim May <tcmay@got.net> writes:
>
>> The remaining alternate course, that the Act is passed, and then that the
>> Supreme Court eventually affirms its constitutionality, is also good for
>> us. For it will then mean war has been declared, and various extreme sorts
>> of actions will then accelerate.
>>
>> And that could be a lot of fun.
>
>Nuke Washington DC.

Perhaps so, but as Stalin said, paraphrasedly,

"How many megatons do the Cypherpunks control?"

--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."

I won't comment on Tim's second possibility, but the amendment added to
SAFE today by one committee //prohibits// judicial review. So much for the
Supremes likely to strike it down.

-Declan



On Mon, 8 Sep 1997, Tim May wrote:

> 
> Though it's understandable why so many are expressing anger, gloom,
> anxiety, and rage over the Freeh-Feinstein mandatory key escrow draft bill,
> a better attitude is that of joy.
> 
> Any way it goes, this is good news for us.
> 
> If the Safe Internet Act (or whatever it is finally called)  is passed, the
> Supreme Court will likely strike it down (on First and/or Fourth Amendment
> grounds). This will marginalize the crypto folks, and perhaps cause the
> Court to reaffirm the Patel decision and related issues.
> 
> If the Safe Internet Act is never actually proposed, or dies in committee,
> or fails, then at least Big Brother's true intentions will have been shown.
> 
> Actually, this has already happened. All of those who ever expressed doubt
> that Big Brother planned to ban crypto must now see we were right all along.
> 
> The remaining alternate course, that the Act is passed, and then that the
> Supreme Court eventually affirms its constitutionality, is also good for
> us. For it will then mean war has been declared, and various extreme sorts
> of actions will then accelerate.
> 
> And that could be a lot of fun.
> 
> But I expect, in all seriousness, that the Freeh-Feinstein view will fade.
> Clinton is about to enter his lame duck phase, and sentiment seems to be
> against mandatory key escrow. As one ironic example, the California state
> legislature has voted unanimously, both houses, to send a message to
> Washington urging easing of crypto exports.
> 
> Feinswine, being a Californian, might want to heed this. But, being a
> Pacific Heights socialist, er, socialite, she's too clueless to have any
> inkling what the issues are.
> 
> --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."
> 
> 
> 
> 
>

Declan McCullagh writes:

: I won't comment on Tim's second possibility, but the amendment added to
: SAFE today by one committee //prohibits// judicial review. So much for the
: Supremes likely to strike it down.

That prohibits---and can prohibit---only review under the
Administrative Procedure Act.  It cannot prohibit, and is not likely
to inhibit, review of Constitutional Claims.  (The ITAR and the EAR
are not ``reviewable'' either; which did not stop Judge Patel in
_Bernstein_ from deciding the constitutional question.)

--
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 5:57 PM -0700 9/9/97, Declan McCullagh wrote:
>I won't comment on Tim's second possibility, but the amendment added to
>SAFE today by one committee //prohibits// judicial review. So much for the
>Supremes likely to strike it down.
>

"Prohibits" in what sense, and in what language?

There's obviously a difference between prohibiting judicial review of
specific wiretaps and the issue of the constitutionality of the legislation
itself! I can only surmise you must mean that language has been added
saying magistrates, etc. are not part of the wiretap process.

Clearly Congress, by the separation of powers arrangement we have in the
U.S., cannot say "And, oh by the way, the Supreme Court is not allowed to
declare this law unconstitutional."

--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."

Let me type in that section. But I'm talking about the issue of the
constitutionality of the legislation, of course. National security and
all.

-Declan

On Tue, 9 Sep 1997, Tim May wrote:

> At 5:57 PM -0700 9/9/97, Declan McCullagh wrote:
> >I won't comment on Tim's second possibility, but the amendment added to
> >SAFE today by one committee //prohibits// judicial review. So much for the
> >Supremes likely to strike it down.
> >
> 
> "Prohibits" in what sense, and in what language?
> 
> There's obviously a difference between prohibiting judicial review of
> specific wiretaps and the issue of the constitutionality of the legislation
> itself! I can only surmise you must mean that language has been added
> saying magistrates, etc. are not part of the wiretap process.
> 
> Clearly Congress, by the separation of powers arrangement we have in the
> U.S., cannot say "And, oh by the way, the Supreme Court is not allowed to
> declare this law unconstitutional."
> 
> --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 8:53 PM -0700 9/9/97, James S. Tyre wrote:
>Tim May is correct (as is Declan's clarification of his earlier note).
>If the amendment does become law, however, do not expect two things:
>
>1.  Do not expect that it will be fast-tracked to the Supreme Court, as
>was the case with CDA.  Instead, expect that it will start with the
>District Court, take years to get to and through the Court of Appeals,
>and then, if the U.S. Supreme Court decides to hear the matter at all
>(it would have no obligation to do so), much more time there.

Do, however, expect injunctive relief prior to any definitive ruling.

>
>2.  Do not expect that a case will involve a broad coalition of
>plaintiffs, as was the case with the CDA.  Expect that the courts will
>only entertain an action by a plaintiff with traditional standing:  one
>who goes through all of the bureaucratic hoops trying to get a license,
>and then is turned down.

Do expect one or more crypto-libertatians to publicize the shipment of
software in violation of the new rules in order to force a judicial
show-down.

--Steve

Steve Schear wrote:
> 
> At 8:53 PM -0700 9/9/97, James S. Tyre wrote:
> >Tim May is correct (as is Declan's clarification of his earlier note).
> >If the amendment does become law, however, do not expect two things:
> >
> >1.  Do not expect that it will be fast-tracked to the Supreme Court, as
> >was the case with CDA.  Instead, expect that it will start with the
> >District Court, take years to get to and through the Court of Appeals,
> >and then, if the U.S. Supreme Court decides to hear the matter at all
> >(it would have no obligation to do so), much more time there.
> 
> Do, however, expect injunctive relief prior to any definitive ruling.
>

Quite possibly.  But only as applied to the individual case, or more
broadly enjoining the government from enforcing the law (if there will
be a law)?  The latter would be better, but many judges would not be
willing to go that far.

> >
> >2.  Do not expect that a case will involve a broad coalition of
> >plaintiffs, as was the case with the CDA.  Expect that the courts will
> >only entertain an action by a plaintiff with traditional standing:  one
> >who goes through all of the bureaucratic hoops trying to get a license,
> >and then is turned down.
> 
> Do expect one or more crypto-libertatians to publicize the shipment of
> software in violation of the new rules in order to force a judicial
> show-down.

I'm not nearly enough of a sucker to bet against that.
> 
> --Steve

-Jim

Let me clarify my earlier comments. The language sez Defense & Commerce
together can veto crypto exports, and:

"Decisions made by the Secretary of Commerce with the concurrence of the
Secretary of Defense with respect to exports of encryption products under
this section shall not be subject to judicial review."

-Declan



On Tue, 9 Sep 1997, Declan McCullagh wrote:

> Let me type in that section. But I'm talking about the issue of the
> constitutionality of the legislation, of course. National security and
> all.
> 
> -Declan
> 
> On Tue, 9 Sep 1997, Tim May wrote:
> 
> > At 5:57 PM -0700 9/9/97, Declan McCullagh wrote:
> > >I won't comment on Tim's second possibility, but the amendment added to
> > >SAFE today by one committee //prohibits// judicial review. So much for the
> > >Supremes likely to strike it down.
> > >
> > 
> > "Prohibits" in what sense, and in what language?
> > 
> > There's obviously a difference between prohibiting judicial review of
> > specific wiretaps and the issue of the constitutionality of the legislation
> > itself! I can only surmise you must mean that language has been added
> > saying magistrates, etc. are not part of the wiretap process.
> > 
> > Clearly Congress, by the separation of powers arrangement we have in the
> > U.S., cannot say "And, oh by the way, the Supreme Court is not allowed to
> > declare this law unconstitutional."
> > 
> > --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."
> > 
> > 
> > 
> > 
> > 
> > 
> 
>

That appears to me to make specific export approvals not
subject to review but the law can still be subject to review.

> Let me clarify my earlier comments. The language sez Defense & Commerce
> together can veto crypto exports, and:
> 
> "Decisions made by the Secretary of Commerce with the concurrence of the
> Secretary of Defense with respect to exports of encryption products under
> this section shall not be subject to judicial review."
> 


-- 
Sameer Parekh					Voice:   510-986-8770
President					FAX:     510-986-8777
C2Net
http://www.c2.net/				sameer@c2.net

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

I am not even sure that it is Constutional for Congress to prevent the
Judicial review of the actions of the Executive branch.


In <199709100526.WAA07506@gabber.c2.net>, on 09/09/97 
   at 10:26 PM, sameer <sameer@c2.net> said:

>subject to review but the law can still be subject to review.

>> Let me clarify my earlier comments. The language sez Defense & Commerce
>> together can veto crypto exports, and:
>> 
>> "Decisions made by the Secretary of Commerce with the concurrence of the
>> Secretary of Defense with respect to exports of encryption products under
>> this section shall not be subject to judicial review."
>> 

- -- 
- ---------------------------------------------------------------
William H. Geiger III  http://www.amaranth.com/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
PGP & MR/2 the only way for secure e-mail.
OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html                        
- ---------------------------------------------------------------

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sameer <sameer@c2.net> writes:

>
> 	That appears to me to make specific export approvals not
> subject to review but the law can still be subject to review.
>
> > Let me clarify my earlier comments. The language sez Defense & Commerce
> > together can veto crypto exports, and:
> >
> > "Decisions made by the Secretary of Commerce with the concurrence of the
> > Secretary of Defense with respect to exports of encryption products under
> > this section shall not be subject to judicial review."
> >
>
>
> --
> Sameer Parekh					Voice:   510-986-8770
> President					FAX:     510-986-8777
> C2Net
> http://www.c2.net/				sameer@c2.net
>

Is Sameer upset because so many senators and congresspersons are Jewish?

Just have your shysters send them a barratrous leter. :-)

---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps

At 8:12 PM -0700 9/9/97, Declan McCullagh wrote:
>Let me clarify my earlier comments. The language sez Defense & Commerce
>together can veto crypto exports, and:
>
>"Decisions made by the Secretary of Commerce with the concurrence of the
>Secretary of Defense with respect to exports of encryption products under
>this section shall not be subject to judicial review."

Then this is _not_ the sense in which you seemed to be implying that the
Supreme Court would be precluded from declaring the law unconstitutional.

--Tim May

>-Declan
>
>
>
>On Tue, 9 Sep 1997, Declan McCullagh wrote:
>
>> Let me type in that section. But I'm talking about the issue of the
>> constitutionality of the legislation, of course. National security and
>> all.
>>
>> -Declan
>>
>> On Tue, 9 Sep 1997, Tim May wrote:
>>
>> > At 5:57 PM -0700 9/9/97, Declan McCullagh wrote:
>> > >I won't comment on Tim's second possibility, but the amendment added to
>> > >SAFE today by one committee //prohibits// judicial review. So much
>>for the
>> > >Supremes likely to strike it down.
>> > >
>> >
>> > "Prohibits" in what sense, and in what language?
>> >
>> > There's obviously a difference between prohibiting judicial review of
>> > specific wiretaps and the issue of the constitutionality of the
>>legislation
>> > itself! I can only surmise you must mean that language has been added
>> > saying magistrates, etc. are not part of the wiretap process.
>> >
>> > Clearly Congress, by the separation of powers arrangement we have in the
>> > U.S., cannot say "And, oh by the way, the Supreme Court is not allowed to
>> > declare this law unconstitutional."
>> >
>> > --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."
>> >
>> >
>> >
>> >
>> >
>> >
>>
>>


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 is correct (as is Declan's clarification of his earlier note). 
If the amendment does become law, however, do not expect two things:

1.  Do not expect that it will be fast-tracked to the Supreme Court, as
was the case with CDA.  Instead, expect that it will start with the
District Court, take years to get to and through the Court of Appeals,
and then, if the U.S. Supreme Court decides to hear the matter at all
(it would have no obligation to do so), much more time there.

2.  Do not expect that a case will involve a broad coalition of
plaintiffs, as was the case with the CDA.  Expect that the courts will
only entertain an action by a plaintiff with traditional standing:  one
who goes through all of the bureaucratic hoops trying to get a license,
and then is turned down.

None of us know, of course, if the amendment will become law.  But if it
does, plan on it being a good while before the judicial process results
in anything determinative, one way or the other.

-Jim

Tim May wrote:
> 
> At 8:12 PM -0700 9/9/97, Declan McCullagh wrote:
> >Let me clarify my earlier comments. The language sez Defense & Commerce
> >together can veto crypto exports, and:
> >
> >"Decisions made by the Secretary of Commerce with the concurrence of the
> >Secretary of Defense with respect to exports of encryption products under
> >this section shall not be subject to judicial review."
> 
> Then this is _not_ the sense in which you seemed to be implying that the
> Supreme Court would be precluded from declaring the law unconstitutional.
> 
> --Tim May
> 
> >-Declan
> >
> >
> >
> >On Tue, 9 Sep 1997, Declan McCullagh wrote:
> >
> >> Let me type in that section. But I'm talking about the issue of the
> >> constitutionality of the legislation, of course. National security and
> >> all.
> >>
> >> -Declan
> >>
> >> On Tue, 9 Sep 1997, Tim May wrote:
> >>
> >> > At 5:57 PM -0700 9/9/97, Declan McCullagh wrote:
> >> > >I won't comment on Tim's second possibility, but the amendment added to
> >> > >SAFE today by one committee //prohibits// judicial review. So much
> >>for the
> >> > >Supremes likely to strike it down.
> >> > >
> >> >
> >> > "Prohibits" in what sense, and in what language?
> >> >
> >> > There's obviously a difference between prohibiting judicial review of
> >> > specific wiretaps and the issue of the constitutionality of the
> >>legislation
> >> > itself! I can only surmise you must mean that language has been added
> >> > saying magistrates, etc. are not part of the wiretap process.
> >> >
> >> > Clearly Congress, by the separation of powers arrangement we have in the
> >> > U.S., cannot say "And, oh by the way, the Supreme Court is not allowed to
> >> > declare this law unconstitutional."
> >> >
> >> > --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."
> >> >
> >> >
> >> >
> >> >
> >> >
> >> >
> >>
> >>
> 
> 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."

"James S. Tyre" writes:

: Tim May is correct (as is Declan's clarification of his earlier note). 
: If the amendment does become law, however, do not expect two things:
: 
: . . . .
: 
: 2.  Do not expect that a case will involve a broad coalition of
: plaintiffs, as was the case with the CDA.  Expect that the courts will
: only entertain an action by a plaintiff with traditional standing:  one
: who goes through all of the bureaucratic hoops trying to get a license,
: and then is turned down.

There would, undoubtedly, have to be some showing of standing, but
that would not require going through the bureaucratic hoops of trying
to get a license _if_ the denial of a license is not reviewable under
the APA, and perhaps not even then.  It is the requirement that one
get a license, not the denial of the license, that is a prior
restraint in violation of the First Amendment and if a licensing
scheme on speech is to be upheld it must provide for prompt judicial
review.  (And normally providing judicial review is not enought to
get around the prior restraint challenge.)  

--
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 08:12 PM 9/9/97 -0700, Declan McCullagh wrote:
>Let me clarify my earlier comments. The language sez Defense & Commerce
>together can veto crypto exports, and:
>
>"Decisions made by the Secretary of Commerce with the concurrence of the
>Secretary of Defense with respect to exports of encryption products under
>this section shall not be subject to judicial review."

Decan,
This paragraph does not, and in fact could not, preclude judicial review of
the constitutionality of the statue itself.


--Lucky Green <shamrock@netcom.com>
  PGP encrypted mail preferred.
  DES is dead! Please join in breaking RC5-56.
  http://rc5.distributed.net/