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[from Cypherpunks]
Those of you who are confident that the Leahy bill won't be interpreted to
punish innocent people (for example, operators of encrypted anonymous
remailers) who are not directly engaged in criminal activity should read the
following article, that appeared as the George Will column March 10, in my
local paper. Maybe it will give you a healthy dose of REALITY (remember
reality, fellows?):
"Taking Property from innocents doesn't fit conservative ideals" by George
F. Will.
In 1827, in a case concerning the forfeiture of a Spanish ship used for
piracy, the U.S. Supreme Court held that the owner could lose his ship even
if he was not even aware of the use of the ship for piracy: "the thing is
here primarily considered as the offender, or rather the offense is attached
primarily to the thing."
That, and a long line of cases in that vein, is why the court last week said
Tina Bennis has no right to compensation for her half-interest in the car
she co-owned with her husband John and which was forfeited after he was
convicted in Detroit of engaging in sexual activity with a prostitute in the
car.
The court was divided 5-4 in rejecting Mrs. Bennis' contention that the
forfeiture violated her 14th amendment right to due process and her Fifth
Amendment right not to have property take without just conpensation.
Justice John Paul Stevens, joined in dissent by David H. Souter and Stephen
Breyer (anthony M. Kennedy dissented separately), condemned the "blatant
unfairness" of punishing an innocent person. And Justice Clarence Thomas,
although concurring separately in the opinion written by Chief Justice
WIlliam H. Rehnquist and joined by Sandra Day O'Connor, Antonin Scalia, Ruth
Bader Ginsburg and Thomas, said that what was done to Mrs. Bennis by
Michigan law was "intensely undesireable."
Because many governments are increasingly agressive in their use of
forfeiture as punishment for prostitution, drug, and other offenses, this
decision, although supported by the most conservative justices, should
trouble conservatives: it involves conflicts between three things they
value- deference to states' legislative judgments, fidelity to precedent and
respect for property rights.
Bennis made his mistake in 1988 in an 11-year old Pontiac he and his wife
had recently purchased for $600. The trial court judge had discretion to
order payment of half the sale proceeds to "the innocent co-titleholder,"
but commented that "there's practically nothing left" after deduction of
police, prosecutorial, and court costs."
Ginsburg noted that the question at issue was not whether compensating Mrs.
Bennis would have been fair but whether compensation was a constitutional
right. And Ginsburg's concurring opinion suggests that she would have
affirmed such a right had not the car belonged as much to Mr. Bennis as to
Mrs. Bennis.
Although Mrs. Bennis neither consented to nor knew of the misuse of the car,
Rehnquist cited the court's language in a 1926 case, that it is common "for
the law to visit upon the owner of property the unpleasant consequences of
the unauthorized action of one to whom he has entrusted it." That practice,
the court had said five years earlier, is "too firmly fixed in the punitive
and remedial jurisprudence of the country to be now displaced."
Certainly the court should not casually unsettle what it has firmly fixed.
Nor should the court relieve Congress of its role in correcting dubious
legal practices. the chairman of the House Judiciary Committee, Rep. Henry
Hyde of Illinois, has drafted the Civil Asset Forfeiture Reform Act that
would, among other things, strengthen protection of innocent property owners.
Still, sometimes the court has had to say, in effect, "Well, come to think
about it... ." It took four years of carnage and then the 13th amendment to
correct what the court did in 1857 in Dred Scott vs. Sanford. But in other
cases the court has tidied up after itself.
In 1896 in Plessy vs. Ferguson, the court held that "separate but equal"
public facilities segregated by race were compatible with the 14th
Amendment's guarantee of equal protection of the laws. Later, the court
conducted a protracted retreat from that position.
In 1905 in Lockner vs. New York, as in similar cases, the court held that a
New York law limiting bakers to a 10-hour workday violatedd teh DUe Process
clause. By 1963, Justice Hugo Black could assert that the Lochner doctrint
of "substantive due process," that the court can overturn laws it considers
unwise, "has long since been discarded." (Actually, it has long since been
smuggled into liberal jurisprudence to support a different social policy
agenda.)
In his obviously uneasy confurring opinion in the court's decision about
Mrs. Bennis' car, Thomas says the case "is ultimately a reminder that the
Federal Constitution does not prohibit everything that is intensely
undesireable."
Quite so. So it is time for the political branches of state governments and
the federal government to act on the clear signals from Thomas and others
concerning the need to protect innocent persons who cannot reasonably be
considered culpably negligent concerning the misuse of their property.
[end of article]
To those suckers who say that they genuinely believe that the operator of an
anonymous encrypted remailer will not be subject to criminal or civil
penalties for what ends up being the misuse of their system, I would like to
re-state a quote from the article above:
"Although Mrs. Bennis neither consented to nor knew of the misuse of the car,
Rehnquist cited the court's language in a 1926 case, that it is common "for
the law to visit upon the owner of property the unpleasant consequences of
the unauthorized action of one to whom he has entrusted it." That practice,
the court had said five years earlier, is "too firmly fixed in the punitive
and remedial jurisprudence of the country to be now displaced." "
Does this sound familiar? Doesn't it hit just a bit too close to home? I
argue that a person who runs an anonymous encrypted remailer could be
clearly claimed to be "entrusting" that "property" to someone else, under
the meaning of the above paragraph. At least, that is the position the
prosecutors could surely take, especially given this Supreme Court decision.
In fact, I would argue that a remailer operator will actually be considered
MORE responsible, legally, than Mrs. Bennis: The abuser of _her_ property,
Mr. Bennis, was in fact the co-owner of that property, and it is doubtful
that Mrs. Bennis COULD have denied to Mr. Bennis, practically or legally,
the opportunity to abuse that property. On the other hand, the operator of
an anonymous encrypted remailer is, in effect, "giving out the keys" to that
remailer (giving authorization to use it) to anyone at any time, with no
checking or other specific authorization, to people who have no legal
ownership in that remailer. In fact, the system is (at least arguably)
helping to cover up after those abuses. If those self-selected people
commit crimes using it, who else is responsible?
Question: If the Supreme Court is willing to take away Mrs. Bennis'
interest in that car under THOSE circumstances, do you really believe that
it WOULD REFUSE to allow a prosecutor to decide that the operator of an
abused remailer should be prosecuted (or his property taken by government in
a forfeiture action)?
Frankly, I don't know how rude I must be before reality sinks in to your
brains: If you people continue to insist that this Leahy bill won't be
abused, you truly do need to wake up before you end up screwing the rest of
us "out here." Your foolish endorsements of this Leahy bill play directly
into the hands of those who want to ban the EFFECTIVE use of encryption.
Go ahead, endorse the bill CONDITIONALLY on the removal of that offending
section. But you should make it quite clear that keeping that section
should kill the entire bill. You have been warned.
Is it any coincidence that we first heard about this Leahy bill much less
than a week after the decision that Mr. Will speaks of? Is it possible
Leahy was waiting to see if the SC would allow him to misuse the wording of
that proposed law? Having gotten the go-ahead, out pops the new bill. As
if on cue.
"Do you feel lucky? Well, do you, PUNK?"
If there are any of you who have doubts as to the need for the
"Assassination Politics" idea, I'd say this S.C. decision should clear them
up but fast. Anybody out there believe that the decision would have gone
this way if we'd all been able to chip in and fix the problem in a few days?
Jim Bell
jimbell(a)pacifier.com
p.s. especially to Tim May: If the issue wasn't so serious, and their blind
support of this bill so obviously misguided, I wouldn't be rhetorically
"slapping them in the face" as I'm trying to do here.
Klaatu Burada Nikto
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