December 2003 - cypherpunks-legacy

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by Karen＠aol.com 17 Dec '03

17 Dec '03

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Crypto Export Restrictions are Unconstitutional
by John Gilmore 17 Dec '03

17 Dec '03

CRYPTO EXPORT RESTRICTIONS ARE UNCONSTITUTIONAL Professor Bernstein is free to publish his software San Francisco, August 26, 1997 - The Federal District Court here struck down Commerce Department export restrictions on the privacy technology called encryption yesterday, concluding that "the encryption regulations are an unconstitutional prior restraint in violation of the First Amendment." For the first time, Judge Marilyn Hall Patel ordered the government not to prosecute or harass the plaintiff, Professor Daniel Bernstein, and those who use or publish his encryption software. The decision knocks out a major part of the Clinton Administration's effort to force companies to design government surveillance into computers, telephones, and consumer electronics. "This is wonderful news," said Prof. Bernstein. "I hope I can get some of my ideas published before they change the law again." The decision is a victory for free speech, academic freedom, human rights, and the prevention of crime. American scientists and engineers will now be free to collaborate with others in the United States and in foreign countries. This will enable them to build a new generation of tools for protecting the privacy and security of our communications. "Once again, it took a federal court to sort out technology and the Constitution," said Lori Fena, Executive Director of the Electronic Frontier Foundation, which backed the suit. "Let this decision signal the other two branches of government that when making laws pertaining to the Internet, they must honor their oaths to uphold the Constitution." The decision is strategic because the Clinton Administration has been using the export restrictions to influence domestic privacy policy. Companies that agree to build "key recovery" technology into their products are exempt from most of the restrictions. Key recovery, a follow-on to the Clipper Chip, is designed to give the government untraceable access to users' private information. The Federal District Court of the Northern District of California last December struck down the ITAR, a set of encryption restrictions enforced by the State Department. A few weeks later, the Government created virtually identical restrictions in the Commerce Department's Bureau of Export Administration (BXA). Yesterday's decision invalidates the new restrictions, stating, "the encryption regulations issued by the BXA appear to be even less friendly to speech interests than the ITAR." She warns that "the government cannot avoid the constitutional deficiencies of its regulations by rotating oversight of them from department to department," though concluding that she "does not believe that such was the intent here." "Our right to create, use, and deploy encryption come from our basic civil rights of free speech, freedom of the press, freedom from arbitrary search, due process of law, and privacy. Judge Patel has affirmed those roots in the First Amendment," philosophizes John Gilmore, Electronic Frontier Foundation co-founder. "Our Founding Fathers used encryption -- and even invented some -- and did not intend any ``crypto exceptions'' to the Bill of Rights." DETAILS OF MONDAY'S DECISION In the heart of the ruling, "The court declares that the Export Administration Regulations . . . insofar as they apply to or require licensing for encryption and decryption software and related devices and technology, are in violation of the First Amendment on the grounds of prior restraint and are, therefore, unconstitutional as discussed above, and shall not be applied to plaintiff's publishing of such items, including scientific papers, algorithms or computer programs." The Court also held that the government's licensing procedure fails to provide adequate procedural safeguards. When the Government acts legally to suppress protected speech, it must reduce the chance of illegal censorship by the bureacrats involved, for example by making the government go to a judge to decide the issue. The EAR does not require this; in fact, it precludes it. "And most important, and most lacking, are any standards for deciding an application. The EAR reviews applications for licenses ``on a case-by-case basis'' and appears to impose no limits on agency discretion." The Court dissected the export controls' exemption for printed materials at length, calling it "so irrational and administratively unreliable that it may well serve to only exacerbate the potential for self-censorship." The government's "distinction between paper and electronic publication . . . makes little or no sense and is untenable." The Court not only declared that these regulations are invalid and unenforceable, but also prevented the Government from "threatening, detaining, prosecuting, discouraging, or otherwise interfering with plaintiff or any other person described . . . above in the exercise of their federal constitutional rights as declared in this order." The immediate effect of this decision is that Prof. Bernstein may publish his encryption software, and that others may read, use, publish and review it. In addition, others in industry are studying the court's analysis, and might decide to publish their own software on the Internet as well. Pretty Good Privacy, Inc, is one such company, which believes that future courts will find Judge Patel's reasoning persuasive. "We are particularly pleased the court has reconfirmed that computer programs, like other literary works, are accorded full protection under the First Amendment," said Bob Kohn, vice president and general counsel for Pretty Good Privacy. The final form of the judgment will be negotiated between the parties, and presented to the court within a week. The government could either seek an emergency appeal of the injunction, or take up to 60 days from the entry of judgment to appeal. ABOUT THE ATTORNEYS Lead counsel on the case is Cindy Cohn of the San Mateo law firm of McGlashan & Sarrail, who is offering her services pro bono. Major additional legal assistance is being provided by Shari Steele of the Electronic Frontier Foundation; Lee Tien of Berkeley; James Wheaton and Elizabeth Pritzker of the First Amendment Project in Oakland; and Robert Corn-Revere of the Washington, DC, law firm of Hogan & Hartson. ABOUT THE ELECTRONIC FRONTIER FOUNDATION The Electronic Frontier Foundation (EFF) is a nonprofit civil liberties organization working in the public interest to protect privacy, free expression, and access to online resources and information. EFF is a primary sponsor of the Bernstein case. EFF helped to find Bernstein pro bono counsel, is a member of the Bernstein legal team, and helped to collect members of the academic community and computer industry to support this case. Full text of the lawsuit and other paperwork filed in the case is available from EFF's online archives at: http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/ Scanned images of Monday's decision are available at: http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/ Legal/970825_decision.images/ The full text of Monday's decision will soon be available at: http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/ Legal/970825.decision Professor Daniel Bernstein will be building his new Constitutionally- protected cryptography web page at: http://pobox.com/~djb/crypto.html Electronic Frontier Foundation Contacts: Shari Steele, Staff Attorney 301/375-8856, ssteele(a)eff.org John Gilmore, Founding Board Member 541/354-6541, gnu(a)toad.com Cindy Cohn, McGlashan & Sarrail 415/341-2585, cindy(a)mcglashan.com

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DoJ press release on Bernstein case
by John Gilmore 17 Dec '03

17 Dec '03

Forwarded-by: Shari Steele <ssteele(a)eff.org> Department of Justice For Immediate Release Tuesday, August 26, 1997 CIV (202) 616-2777 TDD (202) 514-1888 JUSTICE DEPARTMENT STILL REVIEWING DISTRICT COURT DECISION ON EXPORT CONTROLS ON ENCRYPTION SOFTWARE WASHINGTON, D.C. -- The Justice Department said today it is considering what further legal measures it will take following yesterday's ruling by the U.S. District Court in San Francisco that certain aspects of the government's regulations on the export of encryption software are unconstitutional. Another federal court upheld the export controls on encryption software. The Administration is committed to promoting the legitimate use of encryption. Through encryption--or the coding of messages--businesses can protect trade secrets, hospitals can safeguard medical records, and individuals can be assured that personal messages on the information superhighway remain private. But, as President Clinton stated upon issuing an Executive Order on this subject on November 15, 1996, the use of encryption products by unfriendly parties outside the United States can jeopardize the foreign policy and national security interests of the United States, and public safety of U.S. citizens. Judicial proceedings in Bernstein v. Department of State are not yet concluded, and the decision governs only that case. In March 1996, in another pending case in Washington, D.C., Karn v. Department of State, the District Court ruled that export controls on encryption software are constitutional under the First Amendment and serve important interests of the United States. That case is still pending to consider export controls on encryption now administered by the Commerce Department. Until this issue is resolved, export controls on encryption software remain in place. Individuals or companies wishing to export encryption software by any means must continue to adhere to applicable export licensing controls on such software before exporting it abroad. ### 97-351

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by brad＠yielding.com 17 Dec '03

17 Dec '03

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17 Dec '03

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There's something wrong when...Shitty Laws!
by bureau42 Anonymous Remailer 17 Dec '03

17 Dec '03

I think I first realized just how much Tim May's .sig lines are a genuine harbinger of the future when I arrived at www.compost.org to find that there are "Compost Standards in Canada," as explained by The Composting Council of Canada. In short, if I wanted to stack some turds on top of each other, then I had to keep in mind that: "In Canada, three organizations are responsible for the development of standards and regulations for compost and composting: Agriculture and Agri-Food Canada (AAFC), the provincial and territorial governments, and the Standards Council of Canada (SCC) (through the Bureau de normalisation du Québec (BNQ)). This collective responsibility reflects government regulatory requirements (of both the AAFC and the provinces and territories) as well as voluntary industry initiatives (BNQ)." { The word "voluntary" was in _bold_ print! (Mandatory-Voluntary?) } When I first got the urge to phone these people up and scream, "YOU'RE TALKING ABOUT _SHIT_, FOR SHIT'S SAKE!" was when I read that, "All compost that is sold in Canada must comply with the requirements of the Fertilizers Act. This includes provisions for product safety, benefit claims and labeling." Product safety? (Turds are dangerous? You can 'slip' on them?) Benefit claims? (You mean turds _don't_ cure cancer?) Labeling? (It's SHIT! It's hard to fool people about that.) I found out I could avoid fines and imprisonment by reading, "...a National Standard of Canada entitled: 'Organic Soil Conditioners - Composts (BNQ); Guidelines for Compost Quality (CCME); and future amendments to the Fertilizers Act and Regulations (AAFC).'" "Future amendments?" I had to worry about past turds coming back to haunt me, if the laws should change in the future? I was consoled by the fact that these requirements were in the best interests of the different organizations involved, and to ensure that all of the turds in Canada are "consistent." "These provide for a significant level of national consistency by containing virtually identical technical requirements while ensuring that the mandates and interests of the different organizations are realized." My consolation was short-lived, however, as I soon found out that if I didn't understand the proper turd linguistics involved, I could still be in big trouble: "Definition of Compost" "'Composting' and 'compost' are two distinct terms. The former refers to the bio-oxidation process and the latter refers to the resulting product: stabilized organic matter." "As agreed upon by the CCME, BNQ and AAFC, compost is: 'A solid mature product resulting from composting, which is a managed process of bio-oxidation of a solid heterogeneous organic substrate including a thermophilic phase.'" Then, of course, to remain free from fine and imprisonment, I had to be aware of the: Classification of Compost according to: BNQ Standards CCME Guidelines AAFC Regulations As well as keeping in mind: "The Four Criteria: Maturity, Foreign Matter, Trace Elements and Pathogens" Maturity? (You can 'molest' a turd? I could be a 'turdophile'?) Foreign Matter? (Hey! There's a turd in your turd!) Trace Elements? (I have to give the turds multi-vitamins if they don't measure up?) Pathogens? (They mention checking for "sharp objects" in it. If it is a 'long' sharp object, is it illegal to carry the turd in California?) After memorizing the Fertilizer Act and all other regulations and legislation involved, I piled some turds in my yard, next to the garden. It was a week later, when I began to follow the instructions to turn it over and mix it up that I was arrested for "being involved in 'bad shit'." The worst part is that because I was turning it over and stirring it when arrested, I will get an "extra five years" for "use of encryption in the commision of a composting crime." ShitMonger

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Internet Content Coal. bars press from "news rating" mtg on 8/28
by Declan McCullagh 17 Dec '03

17 Dec '03

---------- Forwarded message ---------- Date: Tue, 26 Aug 1997 07:58:10 -0700 (PDT) From: Declan McCullagh <declan(a)well.com> To: fight-censorship-announce(a)vorlon.mit.edu Subject: Internet Content Coal. bars press from "news rating" mtg on 8/28 ---------- Forwarded message ---------- Date: Mon, 25 Aug 1997 17:53:24 -0400 From: Vin Crosbie <crosbie(a)well.com> Subject: ICC bars the press -- irony? Does anyone besides me find it both humorous and sad that this week's meeting of the Internet Content Coalition, during which it will likely discuss its proposal to rate or label which websites offer 'news', will be closed to the press? Does no one else find an unfortunate irony that editorial organizations such as MSNBC, CMP, Playboy, AdWeek, and C/NET are meeting behind closed doors to discuss their proposal about why or how to label or rate which websites are deemed to offer 'news'? After all, why bother discussing a controversial issue in public, in the light of day? Why should these editorial organizations live by the standard with which they judge others? Would they object if other groups or bodies were barring them from reporting on a meeting to discuss a proposal to rate or label whether they offer 'news' content? I think so. >"This is an off-the-record meeting, where New Media editors can discuss >openly and freely, and where we hope to reach a consensus on moving >forward. It is not open to the press," said James Kinsella, general manager of >MSNBC in an e-mail message. quotes Editor & Publisher magazine's website. http://www.MediaINFO.com/ephome/news/newshtm/stories/082297n1.htm Yes, I'm sure that ICC members will feel more free to discuss controversial issues if their meeting is closed to the press. Meetings that are closed to the press are often run more efficiently and can reach concensus more quickly. Just ask any government official, bureaucrat, corporate or special interest executive, or dictator. They'll verify these practical advantages for keeping press out. I realize that the ICC is a private organization. It can do what it wants, including barring the press. But isn't it funny how the 'news' organizations involved plan to bar other 'news' organization so that they can discuss whether or not to deem who offers 'news'? Shame on all involved. _________________________________________________________ Vin Crosbie crosbie(a)well.com

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Reuter on Bernstein Ruling
by John Young 17 Dec '03

17 Dec '03

http://www.cnn.com, CNN Online, 26 August 1997: Encryption rules rejected Judge says federal regulations barring unlicensed exports unconstitutional San Francisco, Aug 25 (Reuter) - U.S. government regulations on the export of encryption software are unconstitutional, a federal judge ruled on Monday. U.S. District Judge Marilyn Hall Patel said licensing requirements for the export of encryption software and related devices were an unconstitutional prior restraint on First Amendment free speech rights. Patel also issued a permanent injunction barring the government from enforcing the regulations against plaintiff Daniel Bernstein or anyone who sought to use, discuss or publish his encryption program. Encryption involves running a readable message though a computer program that translates the message according to an equation or algorithm into unreadable "ciphertext." "By the very terms of the encryption regulations, the most common expressive activities of scholars -- teaching a class, publishing their ideas, speaking at conferences, or writing to colleagues over the Internet -- are subject to a prior restraint by the export controls ...," Patel wrote in a 32-page ruling released in San Francisco. Patel said that, having found the regulations to be invalid, she could have issued a nationwide injunction barring their enforcement. But she said she had kept the injunction as narrow as possible pending appeal because "the legal questions at issue are novel, complex and of public importance." The ruling is important because the computer industry sees use of encryption technology across country borders as essential for advancing electronic commerce and private communications over the Internet. The government has previously cited national security concerns over the export of encryption programs. As a graduate student, Bernstein developed an encryption algorithm he called "Snuffle." In 1992, Bernstein asked the State Department whether Snuffle was controlled by export regulations then in force which classified cryptographic software as "defense articles." The government told him his program was subject to licensing by the Department of State prior to export. Alleging that he was not free to teach, publish or discuss with other scientists his theories on cryptography embodied in the Snuffle program, Berstein sued the State Department in 1995, challenging the regulations on free speech grounds. Bernstein is now a research assistant professor of mathematics, statistics and computer science at the University of Illinois at Chicago. Patel ruled last December that the old regulations limiting the export of encryption software violated the First Amendment. But late last year, President Bill Clinton issued an executive order transfering jurisdiction over the export of nonmilitary encryption products to the Commerce Department. Patel's latest ruling was on Bernstein's amended lawsuit which included the new regulations and new defendants. Patel said that her finding that encryption source code was speech protected by the First Amendment did not remove encryption technology from all government regulation. Cindy Cohn, a lawyer for Bernstein, called the ruling a "very big victory" for free speech advocates. "This brings us a step closer to people being able to freely publish ideas about encryption," she said. A U.S. Justice Department lawyer who defended the regulations could not immediately be reached for comment. The government could appeal the ruling. [End]

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Welfare / Norplant
by Peter Trei 17 Dec '03

17 Dec '03

Several years ago I came up with a little variation on the Welfare Mother problem which I thought was a lot more palatable. Offer a 'birthday present' program, under which *any* female over the age of 11 who has not yet had a child or become pregnant, on her birthday, gets a cash award. The award should be high enough to encourage participation; $250 seems about right. A woman who can deliberatly turn down a $250 lump sum every year for the rest of her life is almost certainly able to afford to raise a child. This scheme: * Is entirely voluntary; no one has to use contraceptives, stay off welfare, or anything else. * Targets young women who would be likely to become 'welfare mothers'. The parents of such young women would be highly motivated to have their dependent daughters participate. I haven't worked out the costs, but suspect that the net savings would be quite substantial. Peter Trei trei(a)Process.com Disclaimer: The above is my personal opinion. I dont suggest that any other person or oganization shares it.

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Shams and Shame
by tcmay＠got.net 17 Dec '03

17 Dec '03

At 2:34 AM 9/8/95, Pat Farrell wrote: >I am even willing to type in some, but that is known to cause typos, >as I can't type, and even spellcheckers can't tell real words >such as 'sham' from 'shame' Yeah, it's a real sham you can't spel. --Tin May ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay(a)got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^756839 | black markets, collapse of governments. "National borders are just speed bumps on the information superhighway."

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