December 2003 - cypherpunks-legacy

Re: Letter Re: Kahn Supporting GAK
by Robert Rothenburg 'Walking-Owl' 17 Dec '03

17 Dec '03

Good point: but I've seen a few refs from LEAs about "Drug Dealer X who we can't talk about" or "Child Pornographer Y who we can't talk about" (in lieu of cases being digested by the court system) so I didn't harp on that point. A point I did leave out was that if they already knew these people were criminals and were building cases against them, monitoring them enough to know they used crypto, then do they really need to bother with listening in to the exact message? I wanted to emphasize the phallacy of the sacrifical lamb of rights in the name of the god of security. Also, they mungled the letter enough, so it's better for LI Newsday (which caters to a reading level of the average 12-year-old) submissions to be kept short and sweet. I'm quite surprised that mine is the only letter they printed. Certainly they would have gotten more than one submission on a controversial subject? --Rob On 5 Feb 97 at 18:22, jim bell wrote: > But which "criminals," exactly, are "increasingly using encryption to > conceal their plans and activities"? Let's not concede this unless it's > really true. > > It would be far more accurate to say that it's likely that many people who > are politically hostile to their government are using encryption in > anticipation of persecution by the government, persecution that could easily > come in the form of criminal charges. > > > Jim Bell > jimbell(a)pacifier.com > > ----- "The word to kill ain't dirty | Robert Rothenburg (WlkngOwl(a)unix.asb.com) I used it in the last line | http://www.asb.com/usr/wlkngowl/ but use a short word for lovin' | Se habla PGP: Reply with the subject and dad you wind up doin' time." | 'send pgp-key' for my public key.

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Re: Deloitte-Touche?
by Bruce M. 17 Dec '03

17 Dec '03

On Wed, 5 Feb 1997, Marshall Clow wrote: > Mr. Murray gave a long, impassioned speech. > > He was very emphatic about not trusting anything > that the government says, and that once they got > their "foot in the door", that they would seek to > expand their abilities to regulate, etc, etc. > > He advocated deployment of strong crypto. He > insisted that there was no way the government > could stop the export of strong crypto. He exhorted > people to refuse to obey the ITAR/EAR regulations, > and to lobby their congresscritters to get the > PRO-CODE bill passed. > > It wasn't really what he said that amazed me, because > I had heard most of it (in bits and pieces) before. It > was presenting it all in a package, in an emotional > manner, by an elderly, conseratively dressed > accountant who was representing a large > corporation whose job it is to help people obey the > government. I was in attendance at an ISSA conference earlier this year where Mr. Murray gave the "keynote" speech on Electronic Commerce. While he did strongly advocate the adoption of strong crypto and various methods of security, he never stepped into the more radical mode of encouraging people to break the law. That was a different audience though. As he is also an ex-25 year IBM veteran it amazes me that he would make such a public outcry against govt. regulations (okay, so it's a stereotype). Deloitte & Touche must really have a big stake in the pro-crypto market or else he actually cares a lot. ____________________________________________________ [ Bruce M. - bkmarsh(a)feist.com - Feist Systems, Inc. ] ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ "We don't want to get our butts kicked by a bunch of long-haired 26-year-olds with earrings." -- General John Sheehan on their reasons for InfoWar involvement

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RE: Fighting the cybercensor
by jim bell 17 Dec '03

17 Dec '03

At 04:35 PM 2/5/97 -0800, Sean Roach wrote: >At 09:09 PM 2/4/97 -0800, jim bell wrote: >>However, fortunately I don't think it would make any difference in the >>overall effects. While AP would eliminate the taxation which is commonly >>thought of as the main way a "rich person" loses assets, in practice it >>would also shut down the well-hidden systems that allow some people to get >>rich (or, merely live off somebody else) "unfairly." Government agents >>come to mind, of course. >> >The money doesn't necessarily come from taxation, the owner of a business >takes a cut of whatever money is made even if that person is unproductive. >The tyrant would be the owner of the industry. The kind of effects I'm thinking of are primarily the "military spending" situations, where: 1. Large numbers of potentially competent and useful people get put into useless jobs: "Army, Navy, and Marines, and Air Force" spring to mind. (Those people who still think military spending is really necessary obviously haven't read AP.) 2. Large amounts of money are spent on military hardware, money which goes to fund people who would otherwise develop useful products in the non-government private sector. 3. The patent system decreases competition, increases profits and prices in the marketplace due to government actions to allow and enforce monopolies. 4. Government employees are paid more for their activities than they would receive in the private sector. Ironically, in this case an "apples-to-apples" comparison is misleading: It would be wrong to compare a middle level government manager to his counterpart in private industry, because to postulate there is such a government-job assumes that the private-sector would do it post-AP. >If you are right then governments would effectively lose the ability to tax, >with or without representation, as most people do not agree on everything, >like how their money is spent. However, even now, as pointed out in some >recent posts, our tax money is used to foreward the goals of a few, these >few want to eliminate guns, crypto, free speech, ect. Although we are in >oppostition, our money is still used to foreward the goals. Yes, the main effect of AP is the elimination of the ability to tax. Now, nothing would prevents individuals from continuing to fund an organization called a "government" so that it could do those (non-coercive) things that individual wants to see done. But I think it'll be amazing how many of those heretofore-funded-by-govt projects (previously promoted as being wanted by a large fraction of the citizenry) that evaporate when the public is given the option to continue to fund them voluntarily. Let's suppose, hypothetically and for vast simplification, the government engages in two activities, "A" and "B." Further suppose government taxes from two groups, let's call them "Alphas" and "Betas." It is traditionally thought that Alphas like spending on "A", but hate spending on "B". Likewise, it is figured that Betas like spending on "B", don't like spending on "A". Post-AP, one might innocently suspect that maybe the "Alphas" would simply fund only "A", while Betas" would donate money for activity "B". Assuming the amount of funding for those activities was equal, you might think that things could go on as they already do. But no. The reality is that "Alphas" merely like spending on "A" _more_ than they do "B", and they will tolerate their own money being used for both only because the "Betas" are similarly forced. Add volunteerism to the whole mix, and not only would these two groups only fund just what they really wanted, they would soon discover they don't even want the level of spending they previously argued for, pre-AP. In practice, those services people like will continue, but it is highly unlikely that they will be supply by organizations which evolve from those currently called "governments." Jim Bell jimbell(a)pacifier.com

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Re: John's: In anarchy -everyone responsible
by jim bell 17 Dec '03

17 Dec '03

At 02:41 PM 2/5/97 +0000, Attila T. Hun wrote: > >+Put simply, "anarchy is not the lack of order. It is the lack of >+_orders_." > > disagree. pure anarchy is not the lack of "orders" --pure anarchy > implies that everyone is imbued with that perfect sense of > responsibility. >From which hat do you pull this rabbit? > >+> anarchy is only possible in an ideal world where _everyone_ >+> assumes not only responsibility for themselves, but for the common >+> good. no malice, no greed, no need for assassination politics.... > >+No, that's traditional thinking and that's wrong. See AP part 8. >+Freud believed (as "everyone" else believed, even myself, before AP) >+that anarchy was inherently unstable. But it ISN'T, if the tools of >+AP are used to stabilize it. And no, no altruism is necessary for AP >+to work as well; no individuals are being asked to sacrifice >+themselves for the common good. Rather, they are given the >+opportunity to work to achieve a reward offered, cumulatively, by a >+number of citizens. > > aah, but that is the difference between a _pure_ anarchy and a > _popular_ anarchy. A pure _anarchy_ is sufficiently idealistic in > that _noone_ lacks the necessary resonsibility to keep society > moving, each individual in their own niche. Why, exactly, is it "necessary" to "keep society moving"? Isn't that somewhat of a contradiction in terms? (particularly when you are discussing the subject, "anarchy." It seems you don't really understand what the word "anarchy" means. Sigh. > As long as there is > perfect responsibility in a perfect anarchy, then there is no need > for AP. Are you saying that for a world that has ALREADY achieved anarchy, and we presume "perfect responsibility," AP is not necessary to maintain this state? Well, that's a rather limited assertion; some would argue it's practically meaningless. Isn't that somewhat like saying, "A perfectly-balanced inverted pendulum needs no mechanism to keep it pointing straight up."? True, perhaps, but how do you get that "perfectly-balanced" part right? > AP is a negative, or _punative_, influence; I might liken it to the > Catholic Church which is a religion of fear, and an instrument of > political control. Actually, it's quite the opposite: AP is the absolute prohibition on and/or destruction of any "instrument of political control." Now, to a person who thinks that the natural state of the world is a condition of political control (and it wouldn't be hard to understand why a person could come to this conclusion, given the bulk of history), the ABSENSE of political control "looks like" political control. This is, obviously, akin to the optical illusion where you stare intently at a pattern of color on a page (the American flag is often used) for a minute or two, and then you suddenly glance towards a white sheet of paper on which, as I recall, immediately appears a complementary flag of green and black stripes, and black stars on a yellow field. AP destroys the mechanisms that societies use for much political control. Jim Bell jimbell(a)pacifier.com

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Re: mail-to-news fun
by Bill Stewart 17 Dec '03

17 Dec '03

At 02:18 AM 2/6/97 -0000, you wrote: >Unfortunately, you don't really have a choice about what kind of >speech you are supporting if you run a remailer. Don't fall into the >trap of saying, "I want to give people complete freedom of anonymous >speech... EXCEPT...." As abhorrent as we may find the homophobic >hatemongers from the "freedom-knights" list, I guarantee a lot of >politicians would object more strongly to the "Help, I might be gay >and my parents will kill me" post. Once you set up a system for >content-based censorship, don't think you can stay in control of it. The problem isn't homophobic hatemongers who use their own names or nyms or no name, or even get my remailer's name associated with that - I can reply to complaints or file them in the handy bit bucket. The problem is forgers signing _other_ people's names to their hatemonger postings, causing the innocent third party to catch all the flames that the forger was trying to generate. Stewart wrote: >> On the other hand, I don't want to support postings titled >> "ALL FAGS MUST DIE" with a forged signature and email at the bottom, >> and I especially don't want to post that from my remailer without >> indicating that anything posted by a remailer might be forged. >> That's why I shut down my previous remailer - the forger only >> posted one forged message; the person whose name got forged >> got flamed severely by dozens of people who objected to "her" posts. >> Blocking the gay newsgroups cuts down on that kind of trolling, >> but also cuts out the "Help, I might be gay and my parents will kill me" >> traffic that remailers are supposed to help with. Guess I should have been more clear.... >As for forgery, I do add > X-Warning: Sender address is unverified and may not be authentic. >to every article that goest through my mail2news gateway. Does anybody read X-Warning: headers? Not all newsreaders even show all the headers. It's a good start, and that's clearly the place in the system to insert it. >Additionally, I have a fast source-blocking system set up, so anyone >in whose name articles are being forged can immediately stop it by >mailing <srcblk-request(a)nym.alias.net>. (This doesn't source-block >them from the remailers, just the non-anonymizing mail2news gateway.) That helps, at least if the spammer is doing a lot of it (or if the spam is from a broken gateway program or whatever.) But for the troll that killed my remailer, one message was enough. # Thanks; Bill # Bill Stewart, +1-415-442-2215 stewarts(a)ix.netcom.com # You can get PGP outside the US at ftp.ox.ac.uk/pub/crypto/pgp # (If this is a mailing list, please Cc: me on replies. Thanks.)

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RE: Fighting the cybercensor
by jim bell 17 Dec '03

17 Dec '03

At 04:35 PM 2/5/97 -0800, Sean Roach wrote: >At 09:09 PM 2/4/97 -0800, jim bell wrote: >>However, fortunately I don't think it would make any difference in the >>overall effects. While AP would eliminate the taxation which is commonly >>thought of as the main way a "rich person" loses assets, in practice it >>would also shut down the well-hidden systems that allow some people to get >>rich (or, merely live off somebody else) "unfairly." Government agents >>come to mind, of course. >> >The money doesn't necessarily come from taxation, the owner of a business >takes a cut of whatever money is made even if that person is unproductive. >The tyrant would be the owner of the industry. The kind of effects I'm thinking of are primarily the "military spending" situations, where: 1. Large numbers of potentially competent and useful people get put into useless jobs: "Army, Navy, and Marines, and Air Force" spring to mind. (Those people who still think military spending is really necessary obviously haven't read AP.) 2. Large amounts of money are spent on military hardware, money which goes to fund people who would otherwise develop useful products in the non-government private sector. 3. The patent system decreases competition, increases profits and prices in the marketplace due to government actions to allow and enforce monopolies. 4. Government employees are paid more for their activities than they would receive in the private sector. Ironically, in this case an "apples-to-apples" comparison is misleading: It would be wrong to compare a middle level government manager to his counterpart in private industry, because to postulate there is such a government-job assumes that the private-sector would do it post-AP. >If you are right then governments would effectively lose the ability to tax, >with or without representation, as most people do not agree on everything, >like how their money is spent. However, even now, as pointed out in some >recent posts, our tax money is used to foreward the goals of a few, these >few want to eliminate guns, crypto, free speech, ect. Although we are in >oppostition, our money is still used to foreward the goals. Yes, the main effect of AP is the elimination of the ability to tax. Now, nothing would prevents individuals from continuing to fund an organization called a "government" so that it could do those (non-coercive) things that individual wants to see done. But I think it'll be amazing how many of those heretofore-funded-by-govt projects (previously promoted as being wanted by a large fraction of the citizenry) that evaporate when the public is given the option to continue to fund them voluntarily. Let's suppose, hypothetically and for vast simplification, the government engages in two activities, "A" and "B." Further suppose government taxes from two groups, let's call them "Alphas" and "Betas." It is traditionally thought that Alphas like spending on "A", but hate spending on "B". Likewise, it is figured that Betas like spending on "B", don't like spending on "A". Post-AP, one might innocently suspect that maybe the "Alphas" would simply fund only "A", while Betas" would donate money for activity "B". Assuming the amount of funding for those activities was equal, you might think that things could go on as they already do. But no. The reality is that "Alphas" merely like spending on "A" _more_ than they do "B", and they will tolerate their own money being used for both only because the "Betas" are similarly forced. Add volunteerism to the whole mix, and not only would these two groups only fund just what they really wanted, they would soon discover they don't even want the level of spending they previously argued for, pre-AP. In practice, those services people like will continue, but it is highly unlikely that they will be supply by organizations which evolve from those currently called "governments." Jim Bell jimbell(a)pacifier.com

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Re: your mail
by Declan McCullagh 17 Dec '03

17 Dec '03

Heh. On the ISP-TV show that Brock Meeks and I co-host, two weeks ago we not only described how easy it was to modify a handheld radio, we had a guest who demo'd cell-snooping on the air. -Declan On Wed, 5 Feb 1997, Bovine Remailer wrote: > http://www.cnn.com > > Congressman demonstrates > ease of cell phone snooping > > > > >

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Re: mail-to-news fun
by Bill Stewart 17 Dec '03

17 Dec '03

At 02:18 AM 2/6/97 -0000, you wrote: >Unfortunately, you don't really have a choice about what kind of >speech you are supporting if you run a remailer. Don't fall into the >trap of saying, "I want to give people complete freedom of anonymous >speech... EXCEPT...." As abhorrent as we may find the homophobic >hatemongers from the "freedom-knights" list, I guarantee a lot of >politicians would object more strongly to the "Help, I might be gay >and my parents will kill me" post. Once you set up a system for >content-based censorship, don't think you can stay in control of it. The problem isn't homophobic hatemongers who use their own names or nyms or no name, or even get my remailer's name associated with that - I can reply to complaints or file them in the handy bit bucket. The problem is forgers signing _other_ people's names to their hatemonger postings, causing the innocent third party to catch all the flames that the forger was trying to generate. Stewart wrote: >> On the other hand, I don't want to support postings titled >> "ALL FAGS MUST DIE" with a forged signature and email at the bottom, >> and I especially don't want to post that from my remailer without >> indicating that anything posted by a remailer might be forged. >> That's why I shut down my previous remailer - the forger only >> posted one forged message; the person whose name got forged >> got flamed severely by dozens of people who objected to "her" posts. >> Blocking the gay newsgroups cuts down on that kind of trolling, >> but also cuts out the "Help, I might be gay and my parents will kill me" >> traffic that remailers are supposed to help with. Guess I should have been more clear.... >As for forgery, I do add > X-Warning: Sender address is unverified and may not be authentic. >to every article that goest through my mail2news gateway. Does anybody read X-Warning: headers? Not all newsreaders even show all the headers. It's a good start, and that's clearly the place in the system to insert it. >Additionally, I have a fast source-blocking system set up, so anyone >in whose name articles are being forged can immediately stop it by >mailing <srcblk-request(a)nym.alias.net>. (This doesn't source-block >them from the remailers, just the non-anonymizing mail2news gateway.) That helps, at least if the spammer is doing a lot of it (or if the spam is from a broken gateway program or whatever.) But for the troll that killed my remailer, one message was enough. # Thanks; Bill # Bill Stewart, +1-415-442-2215 stewarts(a)ix.netcom.com # You can get PGP outside the US at ftp.ox.ac.uk/pub/crypto/pgp # (If this is a mailing list, please Cc: me on replies. Thanks.)

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Re: John's: In anarchy -everyone responsible
by jim bell 17 Dec '03

17 Dec '03

At 02:41 PM 2/5/97 +0000, Attila T. Hun wrote: > >+Put simply, "anarchy is not the lack of order. It is the lack of >+_orders_." > > disagree. pure anarchy is not the lack of "orders" --pure anarchy > implies that everyone is imbued with that perfect sense of > responsibility. >From which hat do you pull this rabbit? > >+> anarchy is only possible in an ideal world where _everyone_ >+> assumes not only responsibility for themselves, but for the common >+> good. no malice, no greed, no need for assassination politics.... > >+No, that's traditional thinking and that's wrong. See AP part 8. >+Freud believed (as "everyone" else believed, even myself, before AP) >+that anarchy was inherently unstable. But it ISN'T, if the tools of >+AP are used to stabilize it. And no, no altruism is necessary for AP >+to work as well; no individuals are being asked to sacrifice >+themselves for the common good. Rather, they are given the >+opportunity to work to achieve a reward offered, cumulatively, by a >+number of citizens. > > aah, but that is the difference between a _pure_ anarchy and a > _popular_ anarchy. A pure _anarchy_ is sufficiently idealistic in > that _noone_ lacks the necessary resonsibility to keep society > moving, each individual in their own niche. Why, exactly, is it "necessary" to "keep society moving"? Isn't that somewhat of a contradiction in terms? (particularly when you are discussing the subject, "anarchy." It seems you don't really understand what the word "anarchy" means. Sigh. > As long as there is > perfect responsibility in a perfect anarchy, then there is no need > for AP. Are you saying that for a world that has ALREADY achieved anarchy, and we presume "perfect responsibility," AP is not necessary to maintain this state? Well, that's a rather limited assertion; some would argue it's practically meaningless. Isn't that somewhat like saying, "A perfectly-balanced inverted pendulum needs no mechanism to keep it pointing straight up."? True, perhaps, but how do you get that "perfectly-balanced" part right? > AP is a negative, or _punative_, influence; I might liken it to the > Catholic Church which is a religion of fear, and an instrument of > political control. Actually, it's quite the opposite: AP is the absolute prohibition on and/or destruction of any "instrument of political control." Now, to a person who thinks that the natural state of the world is a condition of political control (and it wouldn't be hard to understand why a person could come to this conclusion, given the bulk of history), the ABSENSE of political control "looks like" political control. This is, obviously, akin to the optical illusion where you stare intently at a pattern of color on a page (the American flag is often used) for a minute or two, and then you suddenly glance towards a white sheet of paper on which, as I recall, immediately appears a complementary flag of green and black stripes, and black stars on a yellow field. AP destroys the mechanisms that societies use for much political control. Jim Bell jimbell(a)pacifier.com

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[RRE FWD] PKI: 10 Public Policy Questions
by Rick Osborne 17 Dec '03

17 Dec '03

C'punks- Got this off of the Red Rock Eater list, <http://communication.ucsd.edu/pagre/rre.html>, and figured those of you not on it might like a read. _________________________________________________ From: Phil Agre <pagre(a)weber.ucsd.edu> To: rre(a)weber.ucsd.edu Subject: PKI: 10 Public Policy Questions X-Url: http://communication.ucsd.edu/pagre/rre.html [The bottom line: State legislation on digital signatures presupposes an overly centralized architecture and is weighted against victims of fraud. Pursuing inherently national or global issues on the state level permits interested parties to shop for a friendly legislature, who will then set a precedent that other jurisdictions are likely to follow. This system is biased against less politically mobilized constituencies and favors older technologies and more centralized business models.] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= This message was forwarded through the Red Rock Eater News Service (RRE). Send any replies to the original author, listed in the From: field below. You are welcome to send the message along to others but please do not use the "redirect" command. For information on RRE, including instructions for (un)subscribing, send an empty message to rre-help(a)weber.ucsd.edu =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Date: Wed, 05 Feb 1997 09:48:01 -0800 From: Bradford Biddle <BIDDLECB(a)COOLEY.COM> Subject: PKI: 10 Public Policy Questions [...] * * * * * * * * * [Copyright 1997 C. Bradford Biddle; permission granted for non-commercial electronic redistribution] CFP '97: LUNCHTIME WORKSHOP, WED. MARCH 12 1997 12:30PM -2:00PM PUBLIC KEY INFRASTRUCTURES AND "DIGITAL SIGNATURE" LEGISLATION: 10 PUBLIC POLICY QUESTIONS BRAD BIDDLE* Following the lead of the state of Utah, numerous states and several foreign countries have enacted "digital signature" legislation aimed at promoting the development of a public key infrastructure (PKI). While PKI legislation has acquired significant momentum, it is not clear that lawmakers have carefully considered the public policy implications and long-term consequences of these laws. This luncheon session will explore certain policy questions related to a PKI, in an informal "open discussion" format. Ten questions we hope to address are: 1. Is legislation necessary at all? Proponents of digital signature legislation start with the premise that the need for a PKI is clear: public key cryptography and verifiable certificates offer the best hope for sending secure, authentic electronic messages over open networks, thereby facilitating electronic commerce. They argue that the reason that the commercial marketplace has not produced a viable certification authority (CA) industry is because of legal uncertainty (CAs are unable to determine their potential liability exposure because of a confusing array of applicable background law) or because existing law imposes too much liability on CAs. Thus, proponents argue, legislation is necessary in order to provide certainty in the marketplace and allow a much-needed industry to emerge, as well as to address other issues such as the legal status of digitally signed documents. Opponents of this view assert that it is far too soon to conclude that the market will not produce commercial CAs, and point to the increasing numbers of commercial CAs emerging even in the absence of legislation. Time is solving the "uncertainty" problem, opponents argue, and the "too much liability" problem is the product of flawed business models, not a flawed legal system. Opponents of legislation argue that the real danger is that a group of lawyers will impose a set of flawed rules that will fundamentally skew a dynamic infant marketplace and "lock in" a set of business models that the market would otherwise reject. The time for legislation and regulation is after identifiable problems exist in a mature industry, opponents say, not before an industry even exists. Opponents of legislation further argue that existing legal mechanisms can address the issue of the legal status of digitally signed documents. 2. Where should PKI legislation occur? Debate also occurs over the appropriate jurisdictional level for digital signature legislation. Some observers cringe at the thought of 50 inconsistent state digital signature laws; others believe that CAs and consumers will opt-in to the most sensible legislative scheme, and thus believe that competition between the states is helpful. Proponents of uniformity and consistency argue for PKI legislation at the federal or international level; opponents of this view point out that general commercial law has long been the province of state legislatures. 3. Is licensing of Certification Authorities the right approach? Under the Utah Digital Signature Act ("Utah Act") and much of the subsequent PKI-related legislation CAs are licensed by the state. The Utah Act makes licensing optional: CAs that obtain licenses are treated with favorable liability rules, but non-licensed CAs may exist in Utah. Licensing is a highly intrusive form of government regulation (other, less intrusive methods of regulation include mandatory disclosure requirements, altering liability rules to avoid externalized costs, bonding or insurance requirements, etc.). Typically, licensing as a form of regulation is reserved for circumstances where a market flaw cannot be addressed by other, less intrusive means. Does this sort of dynamic exist with CAs? Would consumers be able to make informed, rational choices between CAs? Could an incompetent CA cause irreparable harm? Could other types of regulation address any relevant market flaws? If unlicensed practitioners are allowed to exist, subject to different liability rules, how will this affect the CA market? 4. Should legislation endorse public key cryptography, or be "technology neutral"? Most of the digital signature legislation to date has focused specifically on digital signatures created using public key cryptography. Some legislation has also addressed the issue of "electronic signatures" -- other, non-public key methods of authenticating digital transmissions. Proponents of biometric authentication methods argue that it is foolish to legislatively enshrine public key cryptography as the only technology capable of authenticating an electronic document. They argue that biometric methods can currently accomplish many of the same goals as digital signatures; they further argue that by precluding other technologies future innovations will be discouraged. They also note that public key cryptography can only be implemented using patents owned by a limited number of commercial entities, and question whether it is wise public policy to legislatively tie electronic commerce so closely to the interests of a few private sector actors. 5. Should legislation endorse the X.509 paradigm? When the Utah Act was enacted, it explicitly endorsed the X.509 infrastructure model. Subsequent laws have dropped the explicit endorsement of X.509, but nonetheless remain true to the X.509 paradigm. Under most digital signature legislation, certificates serve to bind an individual's *identity* to a particular public key. This binding is accomplished in the context of a rigid, hierarchical CA infrastructure. This model has been criticized for two main reasons: global CA hierarchies are almost certainly unworkable, and identity certificates often provide too much information -- frequently an "attribute" or "authority" certificate will do. Alternative certificate formats, such as SDSI and SPKI, have emerged in response to these and other perceived flaws with the X.509 model. However, it is not clear that these alternative certificate formats can be accommodated under current digital signature legislation. 6. How should liability and risk be allocated in a PKI? Liability allocation promises to be a vexing problem in a PKI. The liability issue is most dramatic in the context of fraud. An impostor can obtain the private encryption key associated with a particular party and create electronic documents purporting to be from that party. A second party may enter into an electronic contract relying on these ostensibly valid documents, and a loss may occur. Who should bear this loss? In the paper world, generally one cannot be bound by a fraudulent signature. This principle may not be entirely appropriate in an electronic context, however. In a PKI, the integrity of the infrastructure depends upon the security of private encryption keys. If a key holder bears no liability for fraudulent use of that private key, perhaps he or she may not have adequate incentive to keep the private key secure. How much liability should the private key holder bear? Under the Utah Act and its progeny, an individual who negligently loses control of their private key will bear unlimited liability. This risk allocation scheme raises the specter of consumers facing immense losses -- as one commentator puts it: "Grandma chooses a poor password and loses her house." In contrast, consumer liability for negligent disclosure of a credit card number is generally limited to $50. If consumer liability were similarly limited in a PKI, where would the risk of loss fall? If CAs had to act as an insurer in all transactions, the price of certificates would likely be extraordinarily high. If relying third parties faced the risk that ostensibly valid documents may in fact be forgeries and bear any resulting loss, then some benefits of a PKI are lost. 7. What mechanisms should be used to allocate risk? Currently at least one commercial certification authority, VeriSign, is attempting to allocate risk to both certificate subjects and relying third parties by contract. VeriSign includes significant warranty disclaimers, liability limitations, and indemnification provisions in its Certification Practices Statement (CPS). Certificate applicants agree to be bound by the CPS when obtaining a certificate. VeriSign's web page informs relying third parties that the act of verifying a certificate or checking a certificate revocation list indicates agreement to the terms of the CPS. However, it is not clear that a binding contract can be formed with relying third parties in this fashion. Thus the relationship between VeriSign and relying parties may not be governed by the CPS at all, but instead be subject to default contract and tort rules (which would be less favorable to VeriSign). As a policy matter, should CAs be able to form contracts with relying third parties, despite their rather attenuated connection? If relying parties will be bound by unilateral contracts imposed by CAs, they face significant transaction costs involved with determining the contract terms offered by potentially numerous CAs. If CAs cannot scale their potential liability exposure to third parties by contract, however, it may be impossible for CAs to compete on warranty terms -- and presumably such terms would otherwise be the subject of significant competition. 8. Should digitally-signed documents be considered "writings" for all legal purposes? The Utah Act and most other digital signature laws provide that digitally signed documents have the same legal effect as writings. Critics have noted that while most of the functions or goals of writing requirements may be served by electronic documents, this may not be true in all instances. For example, the law often requires a written instrument to effect notice -- i.e., to alert an individual that a lien has been filed on their property. It is not clear that a digitally signed electronic message would achieve the same effect. Additionally, there are other contexts -- such as wills or adoption papers -- where paper documents may prove more effective than electronic documents. Moreover some paper documents (such as bank drafts or warehouse receipts) are negotiable instruments, and this negotiable character depends upon the existence of a single, irreproducible copy of the document. Thus, critics say, digital signature legislation should not override all writing requirements without separately considering the extent to which sound policy might require retention in specific circumstances. 9. How much evidentiary weight should a digitally-signed document carry? Evidentiary issues, though seemingly arcane and procedural, can raise important public policy concerns. For example, the Utah Act creates a presumption that the person who owns a particular key pair used to sign a document in fact did sign the document. Holding an individual presumptively bound by obligations entered into under their digital signature could be inequitable if the individual is the victim of the fraudulent use of such a signature. This potential problem can be compounded by the evidentiary weight assigned to digitally-signed documents. Under the Utah Act digitally-signed documents are accorded the same evidentiary weight as notarized documents, and someone challenging the authenticity of such a document can overcome the presumption of authenticity only with "clear and convincing evidence" (in contrast, one can overcome the presumption of validity of a paper signature simply by denying that it is one's signature). Critics of the Utah Act's approach argue that providing digitally-signed documents with this status creates unreasonable evidentiary burdens for victims of fraud challenging the validity of electronic documents signed with the victim's private key. 10. Should governments act as CAs? Much of the currently enacted digital signature legislation envisions state government agencies acting as "top level" certification authorities who in turn certify a second tier of private sector CAs. At the federal level, the U.S. Postal Service has declared its intention to act as a CA on a nationwide basis. Should governments be acting in this sort of role? Critics say no, arguing that government involvement will skew an emerging private sector CA marketplace. Government actors may face very different liability rules than private sector market participants -- governments can choose to scale their potential liability exposure through the doctrine of sovereign immunity. Thus, critics argue, government CAs may "win" in the marketplace not because they are more efficient or provide better service, but rather because they can stack the rules in their favor. Proponents of government involvement argue that governments can play an important role precisely because they can create sensible ground rules for all PKI participants. Additionally, they note that governments have existing relationships with all of their citizens, making the process of identification and public key binding that much easier. ---------------------------------------------------------------------------- -------------- * Brad Biddle is the author of "Misplaced Priorities: The Utah Digital Signature Act and Liability Allocation in a Public Key Infrastructure," which appears in Volume 33 of the San Diego Law Review, and serves as Vice Chair of the Electronic Commerce Subcommittee of the American Bar Association's Committee on the Law of Commerce in Cyberspace. He is a third-year law student at the University of San Diego and is a law clerk in Cooley Godward LLP's San Diego office, where he served on the legal team advising the Internet Law and Policy Forum's Working Group on Certification Authority Practices. He can be contacted by phone at (619) 550-6301 or by e-mail at biddlecb(a)cooley.com. _________________________________________________ _________ o s b o r n e @ g a t e w a y . g r u m m a n . c o m _________ Most obscure warning: If you fork() without ever waiting on your children, you will accumulate zombies. -PERLFUNC man page

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