December 2003 - cypherpunks-legacy

PowerMacPGP
by fhalper＠pilot.njin.net 17 Dec '03

17 Dec '03

Does anyone know if Mr. Zimmerman or anyone else will be writing a Power Macint -osh PGP porgram. What about the other popular encryption programs. Thanks, Reuben Halper -----BEGIN PGP PUBLIC KEY BLOCK----- Version: 2.3 mQCPAi16KosAAAEEAMUwRni4a9+GbuAhHDLcBWK60hCJUYxhr2hYokpELAhx0ejp 2fq61Tu9Hjn051CN8Xy5nu6sv2ODfG/t59l4DJSb5pirQaII3zaX0rMX0ydwGDoW YakL4ow1lNY+d/k14KpIuUW404+fNuNhIGSkdVLQIfbOgh0preK7/P44AKvdABEB AAG0JlJldWJlbiBIYWxwZXIgPGZoYWxwZXJAcGlsb3Qubmppbi5uZXQ+iQCVAgUQ LXorceK7/P44AKvdAQEUxwQAoffTibRlwE5tNQVGvrulh1OQgXNhTRec9vUaUwPy U64FIZ+KnmdfYgiJYXtcItA90EB9MDexazKeqJzMOPShVNOfyiwy2yUlnQs425f8 DxBvM//zuvj6s4/mXDTPUZtG9PP0HVaEGTJY15JdfRqtj/w+HHnsHlgCnj0NnIhX TW8= =D9UX -----END PGP PUBLIC KEY BLOCK-----

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add cypherpunks
by an62213＠anon.penet.fi 17 Dec '03

17 Dec '03

------------------------------------------------------------------------- To find out more about the anon service, send mail to help(a)anon.penet.fi. Due to the double-blind, any mail replies to this message will be anonymized, and an anonymous id will be allocated automatically. You have been warned. Please report any problems, inappropriate use etc. to admin(a)anon.penet.fi.

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Clipper Cracks Appear
by VACCINIA＠UNCVX1.OIT.UNC.EDU 17 Dec '03

17 Dec '03

-----BEGIN PGP SIGNED MESSAGE----- Seeing as it is politics week here at cpunks, I have found some interesting comments from our friends at whitehouse.gov. Commentary by John Carey in BusinessWeek Magazine (Big Brother Could Hobble High Tech, 3/24/94 pg. 37) states that: So why is the Whitehouse pushing the retrograde notions? One reason is the Clintonites fear of appearing soft on crime and terrorism. "No one wants the head of the FBI walking around saying: 'I don't have the tools to do my job'" says Bellsouth's Markey. Things aren't entirely bleak. The administration, taken aback by vehement opposition from industry, congress and civil libertarians, is suggesting it may back off. "People are willing to work things out" says White House Staff secretary John D. Podesta, who is involved in technology issues. FBI director Freeh says he's willing to accept higher hurdles to get court appointed surveilence. And there are tantalizing hints that the white house is reconsidering its hard line on the clipper chip. <end> Seems that we are having an effect and cracks are starting to leak compromise from the Gov't. This is, however, just the beginning. A ploy used successfully by many groups (New York city's transit authority are masters at this) is to put forth an outrageous proposal, such as clipper etc. Then they soften the demands so that the opponent becomes disarmed, allowing that which the Gov't had intended to pass all along to go through as a compromise. This cannot be allowed. Time to step up the attack a notch. Write the whitehouse and ask them if they want to go down in history as the presidency that ushered in the era of Big Brother. I know Bill won't read it but someone has to. Keep on your congresscritters (I like that word) and put stuff in your local paper. Arm the populace. Lastly, I think many of you are giving this countries people less credit than they deserve. Many simple men and women founded this country. Try not to be so pompous. Scott G. Morham !The First, Vaccinia(a)uncvx1.oit.unc.edu ! Second PGP Public Keys by Request ! and Third Levels ! of Information Storage and Retrieval !DNA, ! Biological Neural Nets, ! Cyberspace -----BEGIN PGP SIGNATURE----- Version: 2.3a iQCVAgUBLYJyUz2paOMjHHAhAQEbCgP/XobypXWta9OBbOAXePNWY7zznS6HHnxS 4fb7MWKlSjRxe283D2oWV0PnNttMLfAcEOknWT8l9/Z8Ef/RUNMo2vRENToE65If oVoUh/lne+PgVpiyT8+oXc8QSFe+8qWJBNL6L1T5YMpghDYYX7bpCn07dCsUQSIb gFItcKbPp8o= =4HsY -----END PGP SIGNATURE-----

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Voice encryption
by Black Unicorn 17 Dec '03

17 Dec '03

I would like someone with enough technical background to design and build a prototype IDEA/DES/RSA device suitable for voice encryption using modular phone jacks and plugs. The prototype and what is learned in the process of designing and manfacturing it, will be used to conduct a feasibility study on the manufacture and marketing of such devices. -uni- (Dark)

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No Subject
by qjones＠infi.net 17 Dec '03

17 Dec '03

Why not beam a time-delayed virus into one of NSA's arrays, destruct code armed and ready to go?? wayne -- **************************************************************************** * Qjones(a)infi.net So I'm a dog...what else is new? * * Qjones(a)larry.wyvern.com Quote from life and times of a man * ****************************************************************************

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Voice encryption
by peace＠BIX.com 17 Dec '03

17 Dec '03

Say - why is it cypherpunks instead of cipherpunks? - its hard to remember! Unicorn> I would like someone with enough technical background to design and build a prototype IDEA/DES/RSA device suitable for voice encryption using modular phone jacks and plugs. Well now, I do that for a living. It isn't exactly cheap. The phone jack would probably be to a high speed modem, 14,400 or higher. The other side would be to a E&M (4 wire) jack attached to a handset. The rest is just an AtoD and DtoA converter and amps, probably with a compander, try intel 29xx chips. This gives a 64kbps full duplex data stream that needs compressed to the modem speed, probably with LPC - linear predictive coding. The DES or IDEA would need to operate at modem speeds - full duplex. How much you want to pay? Peace

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The books you showed at the Mountain View meeting
by solovay＠math.berkeley.edu 17 Dec '03

17 Dec '03

I'd be very greatful for a bibliography of these books [= list of authors and titles. ISBN's and Publishers would help if they are readily available.] I'm sure that many others on the cpunk list would also be interest in this. Thanks, Bob Solovay

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Block Mixing Transforms
by ritter＠cactus.org 17 Dec '03

17 Dec '03

Ritter Software Engineering 2609 Choctaw Trail Austin, Texas 78745 (512) 892-0494, ritter(a)cactus.org Keyed Balanced Size-Preserving Block Mixing Transforms Terry Ritter March 12, 1994 Introduction Modern block ciphers seek to emulate extremely large substitution tables algorithmically, using complex combinations of various simple internal mechanisms. These internal mechanisms include small substitutions and trivial combinings, but the art and mystery of block cipher design is how to couple these simple and weak operations in ways which produce a strong overall cipher. One apparently new type of mechanism which might be useful in block cipher design would take two blocks in, share data between them, and then produce two generally-different blocks as a result. In particular, this mechanism might be used to mix data to (and from) a pair of substitutions, thus hopefully producing a stronger result than the two substitutions operating separately and independently. In most cases, it would be necessary for the mechanism to have an inverse, and to produce output blocks of the same size as the input. The result would be a mechanism which could be inserted anywhere in the internal data paths common in block-cipher designs. Block Mixing Transforms Consider constructs like this: A B | | v v Mixing Transform | | v v X Y X Y | | v v Inverse Transform | | v v A B Capital letters represent data blocks. Alternately, we can describe the transform, in general, as: X := f1( A, B ); Y := f2( A, B ); A := f3( X, Y ); B := f4( X, Y ); The intent of such a system is to mix two input blocks in a complex yet reversible way. This could provide two advantages: 1) It should make each output bit a function of all the input bits (on average), thus providing a way to expand block size while using smaller block-cipher functions. Hopefully the construct would also defeat attempts to "divide-and-conquer" the smaller functions separately. 2) It could provide a way to connect block-cipher functions in sequence, while eliminating any fixed direct connection between the blocks, such connections being vulnerable to "fix-in-the-middle" attack. A mixing transform is not unlike a "butterfly" section in a fast Fourier transform (FFT) [3]. But the usual FFT operates on complex values which are normally represented in floating-point. When implemented in fixed-point (as needed for mixing data blocks), the normal FFT butterfly expands the range of the input values, thus requiring a larger amount of storage (a larger block size) for the result. Fast Hadamard / Walsh transforms [2] behave similarly. For cryptography, we need transforms which are "size preserving" so that we can perform fixed-size block operations (such as DES) either on the input data or on the transformed results. It was not clear to me that this was going to be possible (at least with equations of practical complexity) until Eli Biham provided some examples of size-preserving mixing transforms: X := A - B; Y := 2A - B; A := Y - X; B := Y - 2X; for n-bit blocks, A, B, X, and Y, and arithmetic mod 2^n. There are actually many such transforms, and Biham has found a generalized form: (-1 1 ) (-w w-1) and (w-1 -1) (w -1) where w is some constant. For example, when w = 2: X := -1*A + 1*B = B - A Y := -2*A + (2-1)*B = B - 2A A := (2-1)*X + -1*Y = X - Y B := 2*X + -1*Y = 2X - Y with the arithmetic mod 2^n. To see inverse, note that A = X - Y = (B - A) - (B - 2A) = A B = 2X - Y = 2(B - A) - (B - 2A) = B These are fixed, linear transformations. If we know the input values, and the transformation, we will also know the output values. Even when the full equation is unknown, the simplicity and linearity of these transforms means that they require special protection in cryptographic applications. Mixing transforms can only be used when both the input and the output values cannot be exposed simultaneously. Alas, the transform mentioned above has a problem: Specifically, the least-significant-bit (lsb); that is, lsb(Y) = lsb(B). This is because the expression B - 2A has shifted A left one bit, leaving the bottom bit of B exposed. This provides a bit of direct correlation between an input value and an output value. This is probably sufficient to support a practical "fix-in-the-middle" attack if the transform is used to isolate two DES operations. Consider these correlation experiments on the above transform with 4-bit blocks: x3 x2 x1 x0 y3 y2 y1 y0 b0 64 64 64 64 64 64 64 128 b1 64 64 64 64 64 64 64 64 b2 64 64 64 64 64 64 64 64 b3 64 64 64 64 64 64 64 64 a0 64 64 64 64 64 64 64 64 a1 64 64 64 64 64 64 64 64 a2 64 64 64 64 64 64 64 64 a3 64 64 64 64 64 64 64 64 This is a 0 -> 0 correlation count. For each possible input value (over both A and B), for each input bit which is zero (somewhere in A and B) and each output bit which is zero (somewhere in X and Y), a count is recorded. The count of 128 means that y0, the lsb of Y, occurs twice as often as expected when the lsb of B is zero. Similarly, 64 64 64 64 64 64 64 0 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 a 0 -> 1 correlation count, shows that no cases exist where the lsb of B is a one and the lsb of Y is a zero. Cryptographic Mixing In [8] I introduced a new type of reversible stream-cipher combiner (the first stream-cipher combiner, which we now call "exclusive-OR" or "mod-2 addition" was described by Vernam [12]). "Combiner" is the traditional cryptographic name for a mixing function. [11,5,1] (Non-reversible combiners are also used, typically to make confusion sequences difficult to penetrate. [e.g., 6]) Combiners and mixing transforms have much in common. Basically, a combiner will look like any other two-input one-output function: A B | | v v Mixing Function | v C C B | | v v Inverse Function | v A The capital letters represent the block size; in a typical stream cipher these are byte values. A is the plaintext, B the confusion stream, C the ciphertext. Note that exactly the same confusion stream is needed to recover the original data; this is the heart of stream-cipher security. There are many two-input functions, but most are not useful as cryptographic data combiners, which must be reversible and must have no correlation between either input and the output. Combiners which do have correlation [e.g., 4] fall to statistical attacks [e.g., 10]. If we see mixing transforms as a matched-set of cryptographic combiners, we can see that correlation is a problem with the example transform. (Biham did have an example of one balanced but non-keyed transform based on rotation and subtraction mod 2^n.) Mixing in Mod-2 Polynomials Since the "weak" exclusive-OR form of combiner has long been available, modern combiner designs are normally intended to be "stronger" and, thus, are more complex. But it is not at all clear that "stronger" is what we need in a mixing transform. Presumably, "strength" can be provided more efficiently by some other function, like DES, or a substitution table. Thus, we may really want a modest-strength extremely-fast mixing solution, and one approach is to consider the well-known field of mod-2 polynomials. In mod-2 arithmetic, addition is the same as subtraction X + Y = X - Y and any value added to itself is zero X + X = 0 so, in general, multiplication cannot be achieved by addition X + X <> 2X (assuming X is non-zero) but is instead achieved by shifting. Then 2X + X = 3X so multiplication is not restricted to binary powers. Of course 3X + X = 2X which just shows that mod-2 arithmetic can be surprising. It is interesting to see just how unusual good mixing transforms are. Consider a first approach X := A + B; Y := A - B; (mod-2, mod-p, where p is some primitive mod-2 polynomial of appropriate degree for the size of the data blocks). While this is a reasonable approach in the integers, in mod-2 polys, A + B = A - B. This means that X = Y, and the two resulting identical blocks cannot possibly carry enough information to provide an inverse transform for two arbitrary input blocks. It does not work. Next consider X := A + B; Y := A + 2B; with inverse operations A := (2X + Y) / 3; B := (X + Y) / 3; (mod-2, mod-p), and the division done by multiplying by the inverse of 3, mod p. (Appropriate inverse equations may not always exist; finding the inverse equations is interesting in itself.) This works. But here X is never affected by p at all, thus producing an extremely regular (and un-keyed) transformation. And the inverse multiplication is, in general, far more expensive than multiplication by a small integer. Finally, consider X := 2A + 3B; Y := 3A + 2B; A := 2X + 3Y; B := 3X + 2Y; Again, operations are mod-2 and mod-p, where p is some primitive mod-2 polynomial of appropriate degree for the data blocks X, Y, A and B. This works, and the transform is a self-inverse. The primitive affects the result in both data blocks. And the multiplications are simple. Correlation experiments conducted as before show a nice, balanced, uncorrelated system: 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 64 These functions are extremely fast. Addition is a simple exclusive-OR. Multiplication by two is simply a left-shift and a conditional add of the primitive. Multiplication by three is a multiplication by two plus an addition. Keyed Mixing Transforms The mod-2 polynomial transforms depend on having some primitive of the appropriate degree. Different primitives produce different mixing functions, with similar overall performance. This leads to the possibility of keying the transforms by selecting arbitrary primitives. (Some references to primitive-finding algorithms are given in [9].) Rabin gives the number of degree-n primitives as about p^n / n [7]. Thus, for degree 64, we have about 2^64 / 2^6 or about 2^58 primitives. This means that each randomly-selected degree-64 primitive carries about 58 bits of key. Of course, this key can only be effective to the extent that the linear transformation cannot be attacked and the primitive thus deduced. Some Consequences If a single input bit changes on one of the mixing transform input blocks, we can be sure that at least one bit will change in both output blocks. If two input bits change, we can be sure that these bits will not "cancel" each other; changes will still occur in the output blocks. If many input bits are changed, and the transform primitive is known, it is possible to engineer a no-change in one output block (although this is unlikely to happen by chance). Should this be undesirable, it might be made impossible by design (such as ciphering the input blocks before mixing), or by keying the transform (so the necessary bit patterns are unknown). If it becomes possible to define the input to, and what the output must be from a ciphering element, it will be possible to key-search that element independent of other elements, and this is what we hope to avoid. To prevent this it may be necessary to use keyed input and output transforms, or even multiple ciphering levels between transforms. Applications It is crucial to remember that these simple, high-speed, but linear mixing transforms can be said to have "strength" only if the input and output values are never both available. That is, these structures do not by themselves handle "known-plaintext" attack. (Of course, the same could be said for many other simple internal mechanisms used in block cipher construction.) Simple constructs like A B | | v v MixTrans | | v v C D are not likely to be very useful as ciphers by themselves, even if the mixing transformation is keyed and the blocks are large. On the other hand, constructs like A B | p1 | v v v MixTrans | | v v DES1 DES2 | | | p2 | v v v MixTrans | | v v C D are considerably more interesting. Note that this construct ciphers a double-size DES block at single-DES rates. It seems to require keyed mixing transforms. Similarly, A B | | v v DES1 DES2 | | | p | v v v MixTrans | | v v DES3 DES4 | | v v C D will cipher a double-size DES block at double-DES rates, and at least superficially avoids all weakness in the mixing transform by placing strength in each input and output port. This may avoid the need to key the mixing transform. Alternately, A B | k1 | v v | XOR <- DES1-----| | | | k2 | | v v |---- DES2 -> XOR | | | p | v v v Mixing Transform | | | k3 | v v | XOR <- DES3 ----| | | | k4 | | v v |---- DES4 -> XOR | | v v C D also ciphers at double-DES rates. Of course, larger external blocks mean an increase in the number of internal data paths, making various sorts of interconnection configurations possible. Thus A B C D | p1 | | p2 | v v v v v v MixTrans1 MixTrans2 p3 | | p4 | | v v v v v v -Trans3 MixTrans4 Mix- | | | | v v v v DES1 DES2 DES3 DES4 | | | | | p5 | | p6 | v v v v v v MixTrans5 MixTrans6 p7 | | p8 | | v v v v v v -Trans7 MixTrans8 Mix- | | | | v v v v E F G H will cipher quadruple-size DES blocks at single-DES rates, A B C D | | | | v v v v DES1 DES2 DES3 DES4 | | | | | p1 | | p2 | v v v v v v MixTrans1 MixTrans2 p3 | | p4 | | v v v v v v -Trans3 MixTrans4 Mix- | | | | v v v v DES5 DES6 DES7 DES8 | | | | v v v v E F G H will cipher quadruple-size DES blocks at double-DES rates, and A B C D | k1 | | k2 | v v | v v | XOR <- DES1 ----| XOR <- DES2 ----| | | | | | k3 | | k4 | | v v | v v |---- DES3 -> XOR |---- DES4 -> XOR | | | | | | | | | p1 | | p2 | v v v v v v MixingTransform1 MixingTransform2 p3 | | p4 | | v v v v v v -Transform3 MixingTransform4 Mixing- | | | | | k5 | | k6 | v v | | v | XOR <- DES5 ----| XOR <- DES6 ----| | | | | | k7 | | k8 | | v v | v v |---- DES7 -> XOR |---- DES8 -> XOR | | | | v v v v E F G H will also cipher quad-size blocks at double-DES rates. But in each case, four double-level mixing transforms could be replaced by a single double-size mixing transform: A B C D | | p1 | | v v v v v ---------mix1--------- | | | | v v v v DES1 DES2 DES3 DES4 p2 | | | | v v v v v ix2--------- --------m | | | | v v v v E F G H A B C D | | | | v v v v DES1 DES2 DES3 DES4 | | | | | | p | | v v v v v ---------mix---------- | | | | v v v v DES5 DES6 DES7 DES8 | | | | v v v v E F G H A B C D | k1 | | k2 | v v | v v | XOR <- DES1 ----| XOR <- DES2 ----| | | | | | k3 | | k4 | | v v | v v |---- DES3 -> XOR |---- DES4 -> XOR | | | | | | p | | v v v v v ---------------------mix---------------------- | | | | | k5 | | k6 | v v | | v | XOR <- DES5 ----| XOR <- DES6 ----| | | | | | k7 | | k8 | | v v | v v |---- DES7 -> XOR |---- DES8 -> XOR | | | | v v v v E F G H These are new ciphering architectures. Clearly, it is not known how strong these constructs would be. However, this situation can hardly be considered unusual. Other opportunities exist when constructing completely new block ciphers. These might, for example, be based on byte-wide key- permuted substitutions, thus avoiding differential attacks on fixed "optimal" tables. Thus ------------------------------mix------------------------------ --------------mix-------------- --------------mix-------------- ------mix------ ------mix------ ------mix------ ------mix------ --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- ------mix------ ------mix------ ------mix------ ------mix------ --------------mix-------------- --------------mix-------------- ------------------------------mix------------------------------ enciphers 256-bit blocks through 32 keyed 8-bit substitutions by using five levels of input keyed mixing transform and five levels of output keyed mixing transforms of varying size. Clearly, there are a plethora of alternate interconnection possibilities here. For example, the mixing rows could be permuted, different sizes of mixing combined in some rows, the mixing not arranged on 2^n boundaries, etc., etc. Since the mixing transforms are extremely fast, we would expect this 256-bit system to be much faster than 64-bit single-DES. And, S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- ------mix------ ------mix------ ------mix------ ------mix------ --------------mix-------------- --------------mix-------------- ------------------------------mix------------------------------ --------------mix-------------- --------------mix-------------- ------mix------ ------mix------ ------mix------ ------mix------ --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- --mix-- mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S enciphers 256-bit blocks through 64 keyed 8-bit substitutions by using nine levels of mixing transforms of varying size. With the substitutions all keyed, we can probably avoid keying the mixing transforms. Again, there are a plethora of alternate interconnection possibilities. Summary Practical, high-speed, keyed, balanced, and size-preserving block mixing transforms are introduced for cryptographic service. References [1] Arko, R. 1961. Mechanical Signal Combiner. U.S. Patent 3,159,712. [2] Beauchamp, K. 1984. Applications of Walsh and Related Functions. Academic Press. [3] Brigham, E. 1974. The Fast Fourier Transform. Prentice-Hall. [4] Geffe, P. 1973. How to protect data with ciphers that are really hard to break. Electronics. January 4. 99-101. [5] Kohler, H. 1951. Combining Circuits. U.S. Patent 2,567,214. [6] Massey, J., and R. Rueppel. 1989. Method of, and Apparatus for, Transforming a Digital Data Sequence into an Encoded Form. U.S. Patent 4,797,922. [7] Rabin, M. 1980. Probabilistic Algorithms in Finite Fields. SIAM Journal on Computing. 9(2): 273-280. [8] Ritter, T. 1990. Substitution Cipher with Pseudo-Random Shuffling: The Dynamic Substitution Combiner. Cryptologia. 14(4): 289-303. [9] Ritter, T. 1991. The Efficient Generation of Cryptographic Confusion Sequences. Cryptologia. 15(2): 81-139. [10] Siegenthaler, T. 1985. Decrypting a Class of Stream Ciphers Using Ciphertext Only. IEEE Transactions on Computers. C-34: 81-85. [11] Smith, H. 1950. Combining Circuit. U.S. Patent 2,496,317. [12] Vernam, G. 1919. Secret Signaling System. U.S. Patent 1,310,719. --- Terry Ritter ritter(a)cactus.org (alas, cactus.org dies March 18) ritter(a)io.com (perhaps temporarily)

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No Subject
by rishab＠dxm.ernet.in 17 Dec '03

17 Dec '03

unicorn(a)access.digex.net: > ->\ > I think the recent death-threat-to-Clinton desaster has made clear > that the remailers we have are not very secure, mainly because > incoming and outgoing mail seems to be monitored at many sites. > <- > > Wait, the threat was posted with a remailer? This was the address in the death threat: > The message was signed "Overlord" and purported to be from > "Allmighty(a)Never.Gonna.Catch.Me." > ... Investigators determined the message originated at the UI, and a > computer trace identified Reincke as the apparent author, Hulin said. Looks like a sendmail hack. Sendmail at most sites recognize the site you telnet to port 25 from even if you explicitly provide another one through 'helo'. So while you can forge the From: line, it will appear as if the mail came from your *real* site before it got to the final site. The only site I know of where you can telnet to port 25 and type 'helo this.is.not.my.site' and have it accepted is MindVox, phantom.com. This was a while ago, and I haven't searched very hard for similar sites. If it was sent through remailers the article would probably have mentioned it. They make much better evil hacker news than just a 'purported' address. -------------------------------------------------------------------------------- Rishab Aiyer Ghosh "What is civilisation rishab(a)doe.ernet.in, rishab(a)dxm.ernet.in but a ribonucleic Voicemail +91 11 3760335; Vox/Fax/Data 6853410 hangover?" H-34C Saket New Delhi 110017 INDIA --------------------------------------------------------------------------------

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DT '94, Clipper, New Property... (long)
by Black Unicorn 17 Dec '03

17 Dec '03

Some months ago I published a small work on the list calling for property rights to be assigned to privacy. There was some interest, but for some reason I chose to explore the subject even further. I prefer to release the work through the list, and I would appreciate it if no one distributed it any further without consulting me. Consider this a mailing among friends. Look over the work, let me know if you like it, or better yet send me some hate mail, just as long as you get stirred up. The work below is quite long, and some may find that the message is cut off after the 650 mark. If so, and if anyone really wants to read the end by the time they get to the break, let me know and I will repost with breaks. Should there be enough interest, I will put the work up for ftp somewhere. -----BEGIN PGP SIGNED MESSAGE----- Reliance on The New Property and the Questions of Electronic Privacy and Centralized Power in an Atmosphere of Federal Enforcement Empowerment. - - a legal and philosophical notation - March , 1994 Expansion Generally: The United States of America is characterized of late by a culture of centralization. Increasingly, whether a result of media, advances in infrastructure, sociological factors, or technology in general, the Federal Government has become the problem solving and allocative entity of choice and often the entity of first resort. Causation explanations for the expansion are numerous but, it is the advancing technology model of explanation for expanding federal power that presents the most illustrative backdrop by which to examine centralist trends. This is not because advancing technology suggests an unforeseen departure from the principals embodied in the Constitution of the United States by the "Founding Fathers," (although this supposition in itself has a distinct appeal) but rather because it exposes the double standard that permits the increase of federal power without parallel increases in individualist protections. Technology is a common explanation for the need for greater regulation, but rarely accepted as a legitimate argument in reference to individualist rights, privacy being a key example. This is not, of course, to suggest that the advance of technology is the best, most accurate or only legitimate explanation. Clearly other examples exist and moreover, are equally or more persuasive than the technology model I intend to explore, but the common theme is generally applicable to all the models I have examined. The advance of technology takes on a much more devious meaning when compared to the concepts of property outlined in Reich's "New Property" theories. In 1964, Reich began to publicly question the effect of government expansion and the increasing reliance of the citizenry on government largess, over traditional property. Reich reasoned that government largess required the application of property protections. The difficulty in accepting Reich's "New Property" paradigm and using the model to justify a regulated state with new legal protections are its basic assumptions that: (1) Government is always best suited to serve as the basic controller and decision maker for questions of distributional efficiency. (2) The growth of government largess and regulation is inevitable. (3) The growth of government largess and regulation is desirable, even with the proper protections. (4) The expansion of property protection to government largess and the new property will effectively curb government abuses. After critical analysis of some or all of these assumptions, the new property concept becomes much more workable and, apart from the author's apparent intent, a valuable conceptual tool in the argument against centralizing regulation. As the types of governmental entitlements treated as new property increase in number and scope which is, in Reich's opinion unavoidable, the citizenry must depend on government to assure, protect and insure property rights of such a local and individualized character so as to be incompatible with a majoritarian representative form of decision making. Clearly individualistic concepts like privacy, freedom of contract, and freedom of speech will fall victim to the shortfalls in representation throughout the political process when issues like security and distributive regulation are the other factors on the balance. Additionally, and much more sinister is the use of government largess to affect behavior with the threat of its withdrawal. Often this has the effect of denying otherwise enforceable constitutional protections. History demonstrates that the judicial branch is generally unwilling or unable to police the continual expansion of federal power, or forbid the use of largess withdrawal coercion, and has been so situated since the late 1930's. Simple failure of process is clearly a necessary evil in cases where resort to the federal system is more efficient in accomplishing allocation of resources. (Federal infrastructure projects, interstates for one example.) It is also clearly important not to rule out regulation and oversight as a tool to rectify legitimate market failures. It is important to recognize here, that the standard must be one of careful discretion focused on the proper definition of a market failure, and consistent guidelines for regulation for which I will turn to Stewart, Krier, and Manell. However tolerable the legal process failures may be, an expansion that actively permits and creates largess to be used in coercion is never acceptable. The difficulties begin when centralist regulation is applied to a market in such a way to either: (1) Extend the paternalistic hand of governmental entitlement over newly fabricated individual rights under the pretense of protecting them while at the same time appropriating actual individualistic concepts. (I label these Creationist Entitlements) or: (2) Engulf existing and legitimate individualistic concepts with regulation and then dismissing their loss as an unfortunate casualty of securing protections which are hardly entitlements at all. (Illusionist Entitlements) [The health care legislation is a good example of a creationist entitlement. A troubled industry is made the focus for scrutiny, a national crisis is declared, and every citizen becomes "entitled" to costless health insurance. The absolute right to insurance has been "created." Surely a desirable outcome, but deceptive none the less in that insurance was never considered, by any stretch of the imagination, an individualist right. The net result is the absorption of privacy, freedom of contract concerns, and the reliance on government to insure the citizenry. All these are substituted for the newly created "right" to health insurance and are thus casualties of a creationist entitlement. National security, on the other hand, presents itself as an illusionist entitlement. Violent crime has gripped the national agenda. A crime crisis is declared, and federal law enforcement power is expanded. The civil liberties swallowed up in the process are the casualties of an illusionist entitlement.] The source of justification for such regulation is almost always that a "national crisis" must be solved. The associated externalities, which are almost never shown to result from the lack of regulation are pointed to as creating the need for market preserving regulation. As a result, essential property or personal rights are effectively engulfed in the public sphere, a realm with no interest, and in many instances possessing a negative incentive, in preserving them. The balance that has historically depended on representation to counter the disregard for the individual inherent in the collective is thus bypassed by appointing a trustee with a glaring conflict of interest. In addition the Judicial branch, affords little or no protection. Clearly the distinct difference between individually secured rights and government entitlements, is that the latter are easily taken away by a variety of means not limited to underfunding, lack of resource allocation, coercive largess application, or simple incompetence in administration. The most concerning potential expansions in federal power to date are looming on the horizon. The Digital Telephony and Communications Privacy Improvement Act of 1994, and the Clipper or Key Escrow Proposals together utilize the complexities of what Wilson terms "client politics" and entitlement manipulation to expand the scope of federal law enforcement power, and by extension federal power generally, to an alarming breadth by capitalizing on the current national crisis externality, crime. These proposals in effect make whatever rights to privacy existed within the context of communication, government entitlements. The advances in encryption technology that returned the potential for self secured privacy are effectively eliminated under the nexus of the pending legislation. In return for the high price paid, (Constitutional Amendments I, II, IV, V, X and the oft quoted, rarely guarded right to privacy) the citizenry is presented with a government backed insurance against crime. An illusory entitlement to the benefit of new federal laws and increased funding for enforcement. An entitlement likely to be lost in its effect by nation wide dilution, mismanagement, abuse and incompetence while at the same time empowering the federal mechanism by curtailing what defenses the citizenry retain. There are strong indications that the new bills will create large regimes of government largess coercion, not withstanding the coercive effects of the Key Escrow plan admitted to by the administration. Expansion of Federal Power Generally: In a series of cases including, _Panama Refining Co. v. Ryan_, 293 U.S. 388 (1935); _Railroad Retirement Board v. Alton Railroad_, 295 U.S. 330 (1935); _A.L.A. Schechter Poultry Corp. v. United States_, 295 U.S. 495 (1935), and _Carter v. Carter Coal Co._, 298 U.S. 238 (1936), the United States Supreme Court struck down key segments of legislation in Franklin D. Roosevelt's New Deal Programs. Much of the legislation was considered to have infringed upon traditional notions of private property, and it is thus understandable that the programs, which had lost favor in the years following the President's election, were vigorously challenged. President Roosevelt's re-election and the court's refusal to adopt the legislation led to proposed changes in the structure of the Supreme Court. Under the pretext that the Justices were too old to fully complete their duties, the President proposed that new Justices be appointed for each Justice then on the bench over the age of seventy. As there were six justices then over seventy, the total number of Supreme Court Justices might well be fifteen today were it not for the timely retirement of Justice Van Devanter and the switch opinion of formerly anti-New Deal Justice Roberts in _West Coast Hotel Co. v. Parrish_, 300 U.S. 379 (1937). (The move was commonly referred to as "the switch in time that saved Nine.") In addition, the court modifying bill's key sponsor, Senator Robinson fell to a fatal heart attack. See generally, Stone, et al., Constitutional Law (1991 2d ed.). See also, Leuchtenberg, The Origins of Franklin D. Roosevelt's Court-Packing Plan, 1966 Sup. Ct. Rev. 347. The pro-New Deal decision that followed opened the door for federal expansion under the crack in the law left by the New Court's reading of The Commerce Clause of Article I, section 8 of the United States Constitution. See, e.g., _National Labor Relations Board v. Jones & Laughlin Steel Corp._, 301 U.S. 1 (1937). By 1942, The Commerce Clause was construed so widely by The Court that it reached even private functions so intimate as to include the growth of wheat on private property for self consumption. _Wickard v. Filburn_, 317 U.S. 111 (1942) (Farmer's growth of wheat on private property for own consumption held as affecting commerce and thus within the reach of congressional regulation under The Commerce Clause). The result was to allow nearly any activity to potentially affect interstate commerce when taken in its aggregate. Combined with Justice Stone's outright dismissal of the Tenth Amendment, the power afforded Congress no longer had any practical limits. _United States v. Darby_, 312 U.S. 100 (1941). Describing the rapid growth of Federal power from _Darby_ to date might in itself fill a textbook. Let it suffice then to comment that much of the civil rights legislation of the 1960's found its authority in The Commerce Clause and more on point, that no statute that finds its base for authority in The Commerce Clause has been struck down on those grounds since _Wickard_. The other powers granted Congress are no less encompassing than the Commerce Clause itself. Federal Power and Centralist Regulation: The expansion in federal power has produced an explosion of federal regulation since the first organized attempts to institutionalize regulation in the post depression years. Federal regulation and the wide reading of the Commerce Clause gives states an incentive to buy into, and regulate industries otherwise served by the private sector. This is because the "Dormant Commerce Clause" can be circumvented when states participate in the markets they wish to regulate. This is the "Market Participant" doctrine. See _Hughes v. Alexandria Scrap Corp._, 426 U.S. 794 (1976); _Reeves, Inc. v. Stake_, 447 U.S. 429 (1980); _White v. Massachusetts Council of Construction Employers, Inc._, 460 U.S. 204 (1983). But see _South-Central Timber Development v. Wunnicke_, 467 U.S. 82 (1984). The Dormant Commerce Clause refers to those markets upon which Congress has not yet imposed regulating legislation. Often States are prohibited from regulating these markets under the rational that Congress has the enumerated power to "...regulate Commerce with foreign Nations and among the several States...." U.S. Const. art. I, section 8, cl. 3, and therefore states have given the right to regulate to Congress. _City of Philadelphia v. New Jersey_, 437 U.S. 617 (1978). The exception to the grasp of the Dormant Commerce Clause encourages states to buy into the market and be free of congressional restrictions on interstate discrimination and restrictions on protectionist state regulations. Note however that states can easily accomplish the same regulation by harsh subsidies in markets they participate in. As a result it is as if there existed no deterrent to state regulation at all. "Under existing precedent, the State could accomplish [the] same result [regulation of the industry] in any number of ways.... It seems to me unduly formalistic to conclude that the one path chosen by the State as best suited to promote its concerns is the path forbidden it by the Commerce Clause." _South-Central Timber Development v. Wunnicke_, 467 U.S. 82 (1984) (Justice Rehnquist dissenting). The net result is to encourage "spin off regulation" by the states, and as a result of the buy up of industry required, an increase in government largess and government holdings. (Particularly now that all production from the state interests in the industry is regulated by the issuance of government contracts to manufactures. Government contracts being a privilege, and not a right, withholding them is not subject to tradition constitutional protections.) See, e.g., Charles A. Reich, The New Property, 73 Yale L.J. 733,762 n.5 (1964). Federal legislators then typically respond to the protectionist regulations of states by preempting state practices with federal regulation. This is "double spin off regulation." Spin off regulation and double spin off regulation is not the only cycle of federal growth that feeds off it self to inflate federal power and holdings. The cycle of government largess is equally if not more dramatically vicious. Government largess is used to compel behavior, which in turn creates more government largess. Thus, stifling taxes are imposed, a tax break is given to businesses who comply with regulation, control of these businesses becomes a power in itself which can be used as largess over the employees and downstream of the market. More complicated and devious models are easy to imagine. The New Property, coercion, regulation, and the individual. Reich characterized the increasing reliance of the citizenry on government as a source of wealth as "The New Feudalism." The chief characteristic, and the most convincing in my opinion, that Reich points to is the fact that wealth distributed by the government is conditional and subject to the state. Charles H. Reich, The New Property 73 Yale L.J. 733, 768 n.5 (1964). Reich points to 8 key factors in comparing the use of government largess to traditional understandings of feudalism: (1) Increasingly we turn over wealth and rights to government, which reallocates and redistributes them in the many forms of largess; (2) there is a merging of public and private, in which lines of private ownership are blurred; (3) the administration of the system has given rise to special laws and special tribunals, outside the ordinary structure of government, (4) the right to possess and use government largess is bound up with the recipient's legal status; the status is both the basis for receiving largess and a consequence of receiving it; hence the new wealth is not readily transferable; (5) individuals hold the wealth conditionally rather than absolutely; the conditions are usually obligations owed to the government or to the public, and may include the obligation of loyalty to the government; the obligations may be changed or increased at the will of the state; (6) for breach of condition the wealth may be forfeited or escheated back to the government; (7) the sovereign power is shared with large private interests; (8) the object of the whole system is to enforce "the public interest" - the interest of the state or society or the lord paramount - by means of the distribution and use of wealth in such a way as to create and maintain dependence. Id. at 770. Consider by way of illustrations some of Reich's examples, which I find quite elegant and persuasive. In 1964 the New York Taxi medallion [the license required by the city to operate a taxi] was "a piece of tin worth 300 times its weight in gold." Id. at 735 n.7. Television channels, which are issued at no cost, can be sold at extraordinary sums. Id. at 735. Clearly the ability to deprive citizens of wealth without traditional notions of process is power. The words of Justice Stone illustrate the scope of the congressional spending power and the refusal of the courts to recognize traditional protections : "Threat of loss and not the hope of gain, is the essence of economic coercion." _United States v. Butler_, 297 U.S. 1 (1936) To resort to the mundane (in concept and in source), "He who can destroy a thing, controls a thing." and "...the power to tax is the power to destroy...." _McCuloch v. Maryland_, 17 U.S. (4 Wheat.) 316 (1819). The wider the dependence on government wealth, the wider the power of government. Reich asks the most relevant question in light of government largess coercion. If, or when, the primary property is in the form of governmental distributed wealth, what constraints against the government will be available to the citizenry? Where I depart from Reich is the manner in which to assure individual protections in light of the rise of new property. Reich argues that additional protections are required, perhaps protections that would extend the constitutional umbrella over the new property or government largess. Charles A. Reich, The New Property After 25 Years, 24 U.S.F. L. Rev. 223, 241 (1990). This approach clearly presents the politically difficult problem of granting property rights to all government largess, including such largess as welfare and insurance. In addition, it exposes government largess to the same problem present in all rights not individually secured, namely dependence on government as an enforcement body for rights that often conflict with the general interest of the sovereign. The complexity of allowing government to regulate a market or individualist right and then assigning a governmental oversight authority to prevent government abuse is a wasteful and unpolished solution that merely presents more opportunity for loss in the form of failure of process, abuse or inefficiency. Instead the conceptually simpler approach is to prevent the expansion of federal power into individualist constructs to begin with. The General Effect of Technology on Federal Power: Technology has three basic effects on Federal Power. (1) Technological advances expand existing power. Technology, especially data processing technology, considerably increases the effect of existing power by reducing the cost of information collection, organization, and compilation. Consider the Social Security Number. Clearly, on the eve of its adoption, the Social Security Number was not conceived as an identity measure. Regardless, the number proved exceptionally fitted to identification uses simply by its nature. Each person (theoretically) has but one. No two are alike, and almost every citizen has one by nature of economic coercion (its requirement to file tax return information for one). On its face the number seems benign, but coupled with computing power and the ability to quickly collect, sort and exchange data, the Social Security number has become a powerful tracking tool. In addition, the continued reliance on the number as a secure and accurate identifier creates a dangerous potential for abuse. Technically confidential tax return information is available for the asking provided one has the subject's name, and Social Security Number. It is a simple matter today to track the movements of a citizen by the combined information available from parking tickets, passport records, moving violations, credit card receipts, and telephone records. The travel document that was once a mere request by the government of the United States that the bearer be treated as an American citizen, Comment, Passport Refusal for Political Reasons: Constitutional Issues and Judicial Review, 61 Yale L.J. 171 (1952), is today considered mandatory for travel outside the United States, and bears a bar code. Customs officials are today armed with computer terminals and bar code readers. Driver's licenses, also basically mandatory, are increasingly growing magnetic strips and digitized databases of photos and even fingerprints are seeing increased use. Parking enforcement officials travel about in mini-vans with portable terminals connected by radio link to the Vehicle Registry database prepared to seize any vehicle that might draw a red flag. Many agencies are entirely impotent without the technology appearing as recently as the 1960's. How would the Security and Exchange Commission conduct enforcement without sophisticated data processing equipment today? Data processing technology is not, however, the only impacting advance. What would become of Federal Communication Commission enforcement power without advanced monitoring equipment? (2) Technology justifies new federally empowering legislation. There are few major regulations that seek to address electronic privacy, restrict federal or local power, which justify themselves on advancing technology grounds. The best examples of such legislation in the public sector, The Right to Financial Privacy Act of 1978, Pub. L. No. 95-630, sections 1100-122, 92 Stat. 3697 (codified throughout 12, 31 U.S.C.), The Fair Credit Reporting Act, 15 U.S.C. section 1681 (1988), The Family Educational Rights and Privacy Act, 20 U.S.C. section 1232g(b)(2)(A)-(B)(1988), are sectorized approaches to legislation and offer little if any resort to civil actions. The private sector versions of these acts, The Fair Credit Billing Act, 15 U.S.C. section 1666 (1988), The Fair Debt Collections Practices Act, Id. section 1692, and The Electronic Fund Transfer Act, Id. section 1693, fall far below the pace set by Omnibus legislative efforts in Europe and both the public and private legislation is lacking in its implementation. See Peter Mei, The E.C. Proposed Data Protection Law 25 Law & Pol'y Int'l Bus. 305 n.1 (Fall 1993). Despite the fact that it is seldom if ever used as a justification for legislation to protect the individual, often it is the case that new centralizing regulatory legislation is called for to "cope with recent advances in technology." More interesting still is the propensity to create regulations in the form of "living documents" that usually include a clause to "provide a flexible response to changes in technology." Often the result is to create legislation that possesses no theoretical limit to its scope or enforcement power in seeking to advance the stated purposes. Export regulation can often be so characterized. Some prime examples of technologically justified legislation include: The National Competitiveness Technology Transfer Act of 1989, Pub. L. No. 101-189; Reproductive Technology Legislation, Pub. L. No. 102-493; Genetic Technology Acts, 15 C.F.R. 295.1; and numerous export regulations e.g., 22 U.S.C. 2751. Often these legislative efforts grant powers much beyond that needed to enforce the stated goal, or beyond that which could be justified by the advance of technology alone. (See, e.g., 50 U.S.C. Appx.) (Supposed export justification accomplishes many forms of "fringe benefit regulation."). The New Property and Technology: Technology gives government great power. Government has the power to gather information, to coerce through largess manipulation, to compile records, and to make resistance to policy difficult. At the same time, government uses technology, both directly and as a justifying rational for increased regulation and federal empowerment. The increase in government power, and especially the creation of new types of government largess (Guaranteed Internet Access, Federal Computer Educational Assistance Programs, Universal Health Care) is a threat to individualism in the Unites States. Certainly Charles Reich's concepts of government coercion only gain credibility and ominous implications when the raw power of government augmented with technology is factored in. If indeed we have "no principal that forbids organized society from making use of our dependency to achieve goals of social control," The New Property After 25 years, supra, at 224, then we must either develop such a principal as Reich suggests, Id. at 225, or resist the continual growth of federal power. Considering the current judicial disposition to allow government coercion by the threat of largess withholding, See, e.g., _Steward Machine Co. v. Davis_, 301 U.S. 548 (1937) (Federal tax imposed on employers. Employers who participated in state unemployment funds received 90% refund. Statute upheld and held not to constitute coercion.), it is highly unlikely that largess will see the constitutional protections Reich seeks. Indeed restrictions of these largess coercions, an important legislative tool for federal empowerment, might well invalidate every major regulatory program instituted since the New Deal legislation. Assuming such protections were possible to implement, an assumption that ignores the time, legal, philosophical and momentum restraints, it is difficult to assert that constitutional protections overseen by government would not be watered down by a "balancing" test, or the lack of sufficient redress for the victim of coercion. Reich's model of restricting government with a governmental regime intended to protect citizens from government is simply clumsy. Instead it is today within the power of the citizenry to protect itself from many forms of government largess coercion and control. Consider encryption as an example. Encryption is empowering. With encryption, and specifically public key encryption, the individual thwarts millions of dollars in governmental surveillance development. (The author assumes a basis knowledge of public key encryption on the part of the reader.) If theories are correct, and in the battle between cipher and cryptoanalysis the cipher always wins, the prospect for government control is unusually poor. Consider the crossbow as an analogy. The crossbow was an advance in technology that allowed the common man without training to unhorse and usually kill a mounted, armored knight at range. Chuck Hammill, Address at the Future of Freedom Conference (Nov. 1987). The threat to the balance of power prodded the church and the monarchs to take all steps available to eradicate the use of crossbows; excommunication and death for example. Id. Of course, it was never wrong for the knights to use crossbows against heathens. Today, the advent of public key cryptography threatens government's control over the transfer of information. It is no surprise then that government is desperately trying to maintain a grip over the technology that threatens to be available to everyman. Witness the attempt to legislate the information highway, the Digital Telephony Bill, the Clipper Key Escrow proposal. If these technologies, digital communications, Internet access and encryption, cannot be directly banned or restricted because of constitutional restraints, they can certainly be converted to government largess without constitutional issue. The new feudal, federal system has seen a crossbow in the making, and it seems that the knights want exclusive use rights. What implications would truly anonymous transactions, digital cash have on the current tax collection structure of the United States? The registration of automobiles? Firearms? What impact might truly untraceable and secure communications across an unsecured channel*[reword]? The current technologies threaten to break the current trend of federal empowerment, and worse for the centralists, reverse it. The (Il)legitimacy of Pending Legislation: (1) The Digital Telephony and Communications Privacy Improvement Act of 1994: The Digital Telephony and Communications Privacy Improvement Act expands federal power by placing a positive burden on the common carrier to provide law enforcement with communications intercept and "call setup information" and imposes penalties upon common carriers who do not comply. The Digital Telephony and Communications Privacy Improvement Act of 1994, section 2. See also, Mike Godwin, Section- by-Section Analysis of the 1994 Draft of the Digital Telephony Legislation (1994). Godwin suggests that the new burdens on common carriers are imposed because 18 U.S.C. 2518(4) is not commonly read to impose such a burden, and thus common carriers are often reluctant to provide the kind of solutions to intercept problems law enforcement would like. Mike Godwin, Section-by-Section Analysis of the 1994 Draft of the Digital Telephony Legislation (1994). The specific provision provides "Common carriers shall be required to provide forthwith, pursuant to court order or lawful authorization, the following capabilities and capacities in order to permit the government to conduct electronic surveillance and pen register and trap and trace investigations effectively." Digital Telephony Bill, section 3 (amending 18 U.S.C. 109, section 2237(a)). The draft goes on to provide for simultaneous interception of communications and call setup information. Digital Telephony Bill, section 3 (amending 18 U.S.C. 109, section 2237(a)(1)). The intercepted information then must be forwarded to a facility of the government's choice. Digital Telephony Bill, section 3 (amending 18 U.S.C. 109, section 2237(a)(4)). Penalties for failure to comply are set at $10,000 per day and subjects offending common carriers to F.C.C. sanctions or fines. Digital Telephony Bill, section 3 (amending 18 U.S.C. 109, section 2237(f)). Enforcement power is given to the United States Attorney General or at the Attorney General's request, the Federal Communications Commission. Digital Telephony Bill, section 3 (amending 18 U.S.C. 109, section 2237(e)). Apparently the Digital Telephony Bill does expand federal enforcement power significantly by giving new powers to the Attorney General, placing new burdens on common carriers, and assigning new fines for non-compliance. In addition, the bill would make interception a much easier task for federal and local law enforcement, both of which benefit from provisions of the Digital Telephony Bill. As the technical nuances of forwarding intercept information to the government "location" are not addressed, one wonders if government officials can access any intercept and call setup information they wish, or if they must request the information from the common carrier, presenting evidence of their lawful authority in the process, and have it forwarded. The reference to common carriers raises the question, will these include "public access" internet providers. Note that the Digital Telephony Bill adopts the definition of common carrier in 47 U.S.C. 153(h): "Common carrier" or "carrier" means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy. 47 U.S.C. 153(h)(1993). In addition, it is possible that such providers might fall under the "common carrier support services" provider provision of the Digital Telephony Bill. Digital Telephony Bill, section 2. Mr. Godwin suggests this might impose obligations upon local telephone service providers to acquire "transactional information" from Internet providers when e-mail is sent. Mike Godwin, Section-by-Section Analysis of the 1994 Draft of the Digital Telephony Legislation (1994). The implications for anonymous mail in this instance would be dire. Of particular interest is the focus on "pen register" and "call setup" information. Pen register and call setup information has a much lower standard of protection than the actual communication. _Smith v. Maryland_, 442 U.S. 735 (1979)(Installing pen register without warrant did not violate suspects fourth amendment rights). See also, _California v. Greenwood_, 486 U.S. 35 (1988)(Information voluntarily turned over to third parties, including call setup information, not protected by fourth amendment). See also, 18 U.S.C. 3123 (1988). The net effect of this section of the Digital Telephony Bill would be to make such virtually unprotected information trivial to collect. Although the proposed legislation may or may not technically expand authority it most certainly does give law enforcement huge increases in capabilities, especially in data collection. (2) The Escrowed Encryption Standard: On April 16, 1993 the administration announced the Escrowed Encryption Standard initiative. The proposal allegedly seeks to address and reconcile the conflict between privacy of citizens and the intrusive needs of law enforcement. In effect the initiative proposes a standard public key encryption algorithm for voice and data communications. The algorithm is implemented in hardware, the "Clipper" chip, that will be installed in a variety of communications devices. The keys required to decrypt the communications between the devices are segmented and "escrowed" between two agencies. The cooperation of both agencies is required in releasing the key segments to allow wiretapping of any individual device using the Clipper chip. The theory is that the encryption algorithm will provide security for the public from unauthorized eavesdroppers, while allowing law enforcement access to the encrypted communications. The program is described as "Voluntary." See generally, Statement of the White House Press Secretary, April 16, 1993. The Escrowed Encryption Standard is justified by the reliance of law enforcement, and particularly federal law enforcement, on interception of telephone communications in the battle against drugs and terrorism. The Effects of Legislation: Security and privacy are often considered mutually exclusive in their nature. One cannot serve both masters without duplicity. In this respect, the Escrowed Encryption Standard , which is presented as a compromise between the two, is a paradox. Clearly the EES is not at all interested in privacy for citizens. If indeed strong cryptography is such a threat to law enforcement, its availability can only be privacy enhancing in reference to whatever other listeners might seek to overhear. If law enforcement, especially in light of the scope of federal power, does not have the resources to penetrate the currently available strong encryption methods, then EES is not required for privacy. Indeed the EES initiative merely limits privacy to a manageable level under the guise of a government entitlement to privacy. The government here has created an illusionist entitlement to privacy, and given it to the citizenry hobbled, while with the other hand taking what tools were present for the citizens to see to their own privacy in electronic communications. The concept of "standing" illustrates the enhanced privacy available to citizens in the context of one constitutional right, the Fourth Amendment to the Constitution of the United States. The Fourth Amendment is protected by a doctrine called the exclusionary rule. Law enforcement is deterred from violating the Fourth Amendment by the exclusion of such evidence as is illegally obtained from admission at trial. _Mapp v. Ohio_, 367 U.S. 643 (1961). In order to exert this redress, a complaining party is required to have "standing." Simply put, it must be your constitutional rights that have been violated in order to obtain any redress. Were a third party to be searched without the process of a warrant, there would be little redress except for resort to a civil suit, few of which are successful and fewer of which are profitable. _Zurcher v. Stanford Daily_, 436 U.S. 547 (1978). Encryption fills the standing gap. Instead of relying on inefficient process to insure individual privacy in communication, it is now possible for the individual to secure such privacy and protection provided by the amendment but not enforced by the exclusionary rule or civil procedure. If strong encryption presents no threat to law enforcement other than as a cost in time and resources, then it is clear that the scope of domestic monitoring is beyond that which is authorized by court order. According to filings for the year of 1992 state and local authorities performed 846 "intercepts" averaging $46,492 per intercept. Donald P. Delaney, Dorothy E. Denning, Wiretap Laws and Procedures, Sept. 23, 1993. Intercepts under the Foreign Intelligence Surveillance Act of 1978 numbered 484 for 1992, costs are unreported. Id. See also, The Foreign Intelligence Surveillance Act of 1978 50 U.S.C. sections 1801- 1811. Non-FISA intercepts totaled in cost for the year of 1992 near 40 million dollars by these figures. If the implementation of EES is merely a cost cutting measure, and the costs are associated with the economics of decryption of suspect's intercepts using strong encryption, an assertion that lacks any basis, then the EES proposal must total in costs less than 40 million per year and the sum of the FISA intercepts assuming each of these was an interception of encrypted material. If the EES proposal exceeds the cost of these intercepts, we must assume that either: (1) The plan is not economically sound. (2) There are more domestic intercepts than are reported as legitimate. It might be added that EES will not itself reduce the cost of actual interception from the common carrier, while Digital Telephony might. This may explain the similar timing of the initiatives as an attempt to coordinate a cohesive data policy. In addition, encryption technology is a growing and thriving market. The market for security software, fueled by virus and general security interests has attracted many competitors and several contributors in the public domain who have helped to prop up the quality of commercial software. The fact that a market has evolved even in the face of harsh export restrictions suggests that a free marketplace would be a significant force. Clearly regulation is not proper here where: (1) There has been a fairly liquid exchange and availability to consumers of information in the marketplace. (2) There are no restricted commodities (within the United States). (3) There are large numbers of buyers and sellers in the market. (4) There are no localized externalities. Stewart, Krier and Manell, Environmental Law and Policy (3d ed. 1990). In this case the market is restricted by a supposed externality of "national security." The contention that law enforcement and counterintelligence activities will fall apart without the unhindered ability to wiretap is without merit. Supporters of the EES proposal are utilizing a logical fallacy in pointing to the number of convictions obtained by the use of wiretaps as evidence of EES's merits. Indeed law enforcement has relied heavily on their ability to wiretap with basic impunity. The abuses that do come to light surely indicate that more lie undiscovered below the surface of investigatory processes. The assertion that law enforcement cannot properly adjust their methods to rely instead on physical microphones and non-intercept type surveillance is a mere front to preserve the current regime; one of rubber stamp approval and lowered standards of "cause." Law enforcement has found in the ability to wiretap an easy circumvention of the Fourth Amendment because courts have indicated that the key legal principal (the manifestation of an expectation of privacy) is lower in telephone conversations than in the home. How is it that when the citizenry attempts to exert an increased shield of privacy over telephone and electronic conversations by not turning them over to the third party (common carrier) in intelligible form the government seeks to make this impossible? _Smith v. Maryland_, 442 U.S. 735 (1979)(An individual has no legitimate expectation of privacy in the numbers dialed on his telephone because he voluntarily conveys those numbers to the telephone company...) See also, _California v. Greenwood_, 486 U.S. 35 (1988). _Katz v. United States_, 389 U.S. 347 (1967)(What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection). What evil is there in individuals filling the gap that fails to enforce higher protections on our phone and electronic conversations, which incidentally, we rely on today much more than in years past. That the government has an affirmative right to be allowed access to the raw conversation is perhaps understandable. That the government has a right to be provided with a plain meaning translation of what they intercept is not. Even the provisions in the Digital Telephony Bill recognize that the government will not place a duty of translation on the common carrier. The Digital Telephony and Communications Privacy Improvement Act of 1994, section 3(i)(5) (Amending 18 U.S.C. 109 section 2237). Why then is it obvious that this burden should be placed on the citizen? At the very least, the increased expectation of privacy manifest in the attempt to encrypt conversations, even under the EES initiative, should entitle the parties to greater protections of process under the Fourth and Fourteenth Amendments, _Katz_ and _Greenwood_. The EES program is presented as a voluntary program. Unfortunately the government's definition of voluntary falls short. In the case of the EES program, government is trying to establish a de facto standard by requiring all government communications to be made with the new technology. The result is the threat of withholding the government largess of government contracts to the companies that rely on such contracts for their existence. The companies in turn, in the interest of economy, will request that other associations outside of a government context be made with the new technology. Coupled with import/export policies that make competing technologies highly unprofitable to market, the level of coercion is obvious. In order for the EES program to accomplish its goals in relation to crime and the use of strong encryption to deter law enforcement interference, other technologies must not be readily available in the United States. Clearly any group of criminals that might wish to use strong encryption would not adopt a standard labeled at the outset as penetrated by the government. It is hard to take the government's assertion that the program will be voluntary at face value in light of these analysis. The dangers of allowing government to make privacy a collective good distributed, and incidentally seized, by government itself, which is essentially what the EES and Digital Telephony Bill proposals do, should be self apparent. There is little or no reason to believe that this form of government largess will be treated any different as far as coercion by threat of withdrawal is concerned. Coupled together, the ability to eavesdrop on citizenry and cripple a blossoming ability for the individual to secure his or her own privacy, the government has not only eliminated the most significant potential advance in individual and private property, but also gained a good deal of capability in preparing future regulation. Digital cash, which without EES would be potentially untraceable and anonymous, will be tracked as easily or easier in the new regime than the hard currency of today and yesterday. A governmental control of the information structure through subsidy will impose government requirements for disclosure on what would otherwise be private carriers with no such requirements. If these concepts are available to reasoned analysis, they have likely occurred to the administration. Clearly anonymous digital cash and completely untraceable transactions, at little or no cost, are not in the administrations best interest. This suggests that the Digital Telephony, National Information Infrastructure and EES proposals are about, and have always been about, much more than law enforcement, assured access and privacy, but also continued control, regulation, and the status quo. unicorn(a)access.digex.net -----BEGIN PGP SIGNATURE----- Version: 2.3 iQCVAgUBLYK97xibHbaiMfO5AQGHXwP/ZBVQYOaf63HtFU5FJuRnUj8AyHWRB5Bt /MH0yanuV3+LkaalDXzTt3j/f7gFi5AEJK62CdOMU/T+nMfNg2QGjVTeYY1t9c09 d/NyddXgICd7uEtddced5+jvsMoVwSeDoGn4RLV8hokOvEiLXn9ifcloAnZ55epU FOR//d3uU9Y= =UsvS -----END PGP SIGNATURE-----

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