If the below is cut off by your mailer or mine, please drop me a note and
I shall send you a complete copy.
-uni- (Dark)
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Political Ramifications of Free Encryption Technology.
To me the Cypherpunks represent the drive to free technology from a
regimented, collectivist, and centralized regulatory structure. So deep
does this inclination seem to run that even liberal programs that might
extend the reach of high technology particularly communications and data
storage or processing technologies, through social reform are looked at
almost universally with distaste. There is almost a disgust at the mere
notion of Federal Government involvement in the development and
distribution of technology. (Reaction to Al Gore's programs are a
demonstration of this attitude). Some on the list would certainly
disagree, feeling that government should take responsibility to promise
equal access in the face of the amazing disparity selectively distributed
technology would create, but I feel these are mere philosophical
differences in methodology, and not major conflicts in goals. In some ways
this debate is so powerful and threatens to fill so much bandwidth that
some Cypherpunks seem to resist any political content on the list.
(Witness the many clashes about what the Cypherpunks list is really for,
and whether political topics even have a place therein). A treatment of
the merits of Government involvement in distributional aspects of
technology, or the level of regulation required or desired goes beyond the
scope of this work. I wish instead to focus on the likely institutional
reaction to a Cypherpunk victory. This necessarily requires a good deal of
assumption on my part. Probably also some assumptions that are likely to
make as many people happy as upset. I think the underlying analysis below
is sound whatever the political persuasions of the reader. That being said
let it be known that I consider the following as a "Cypherpunk victory."
1. Complete freedom of technology, particularly encryption technology,
regulated only by market forces. This implies the lack of import/export
restrictions, and a complete absence of projects designed to limit
technology, or to standardize it for nefarious ends like Clipper.
2. A wide market of hardware and software products allowing, among other
things, strong, transparent cryptography for voice, data, fax, cellular,
and video communications.
3. Active and profuse vendors of related applications of the above
technologies, including among others, digital banking, and anonymous mail
(in my use including video, voice, data, and true digital cash).
I think these are all possible (however likely or unlikely) within the next
five years.
Many Cypherpunks will necessarily draw a "fall of modern government" effect
from the above conditions. Others will see the existence of a regulatory
entity much lessened in importance and control than today. Still others
will predict little change at all. Whatever your position, I think it is
clear that government, like any entity, will seek to survive despite the
above conditions. I assume in my construct that the Federal Government has
fought these points on all fronts (a safe bet in my view) but lost (a less
likely scenario to me in the next five years). Given these facts, how is
government likely to adjust? Surely not without a fight to survive even in
the face of what many see as impending doom for revenue collection and law
enforcement.
I have often commented that Cypherpunks see things about 6 months to 2
years before the popular culture begins to catch the scents. It is
surprising to me then that the list (as far as I know) has been so stuck in
the present with regard to the likely reaction to long term Cypherpunk
goals. Most political discussions deal either with the present Federal
Government threat, (Clipper, Digitel, Information Superhighway) or with the
long term promise of Cypherpunk technology, but not the future Federal
Government response to said technology. Partly I think this is
attributable to the perception that the Federal Government is as much
behind the times as popular culture. Technically this is probably true on
the whole. (Dorthy Denning being short sighted enough to insist that law
enforcement needs wiretap ability because they have always had such an
ability. Ms. Denning's similarly dense arguments based on statistics to
the effect that since law enforcement has used wiretaps so often, they must
be indispensable and thus must be preserved. What Ms. Denning never
mentions, either accidentally or with intent, are the alternatives). But
it is equally true that there is, or there appears to be, some foresight on
the policy level as to the implications of the new technology on the long
term. (The Clipper proposal is either a entirely absent minded program
which can never work because the goal really is a non-mandatory non-
regulatory standard creation, or it is an adept foot in the door coup. A
tour de force program in conjunction with Digitel, Information Highway, and
NIST designed to preempt technology.) So what if the Cypherpunks win?
How will the complete inability of law enforcement (Federal or Local) to
conduct wiretaps impact collection? Those who think that law enforcement
will just have to go away might want to reconsider. Instead I think that
law enforcement will simply become much more intrusive as a response to the
unavailability of easy interception via wiretapping.
Recently on the list it was pointed out that few if any serious ciphers
have been cracked without a Human Intelligence component. Indeed many of
the later successes against the Enigma machines could be found in German
operator laziness rather than pure analytical prowess. One Signals
Intelligence type mentioned that his job was made much easier by the
propensity of the German communication officers he was responsible for to
use obscenities for their Enigma keys.
Currently wiretaps are so popular not because they are indispensable but
because a series of court decisions have made them the simplest, and
cheapest method of Criminal Intelligence. Cases like _Smith v. Maryland_,
442 U.S. 735 (1979) have placed a fairly low burden on the law enforcement
officials seeking to intercept telephone conversations, and almost no
burden on those who wish to intercept call setup information. It is no
surprise then that they have become so frequently used in criminal
investigation and are so often cited as well as jealously defended as
critical.
Given the national anti-crime sentiment (even far left democrats seem to
have given up on rehabilitation, and any astute politician who aspires to
another term is terrified of being portrayed as soft on crime), the
position that secure communications will solve the lack of oversight and
intrusiveness of law enforcement conveniently ignores the constitutional
"adjustments" that were made in the face of the national neurosis with the
war on drugs. Instead Federal and Local law enforcement will begin to rely
on Human Intelligence as well as more intrusive site collection to work
around the technologically intensive and prohibitively expensive Signals
Intelligence in the new era. Courts, tired of dismissing hundreds of
otherwise legitimate looking cases, are likely to judicially erode the
constitutional protections protecting citizens from search and seizure
particularly with reference to an increased law enforcement reliance on
more intrusive room surveillance equipment. In the context of the Fourth
Amendment's structure this becomes a particularly difficult problem. The
Exclusionary Rule provides for the rejection of evidence collected in
violation of the Fourth Amendment (there is no effective civil remedy) but
as many commentators have pointed out this is a particularly difficult
thing for a judge to do. Exclusionary Rule motions come in the context of
a convicted criminal, who most often was fairly obviously guilty, but who
would be released without the evidence in question. Most of today's
Exclusionary Rule law comes from drug cases as it became increasingly
difficult in the late 1970's and early 1980's to overturn convictions where
two kilograms of cocaine was discovered by a questionable search. Will not
this same judicial activism be used to expand law enforcement's freedom to
use room bugs and other intrusive methodology in the face of the argument
that wiretapping is impossible? Similarly is it likely that law
enforcement will begin to rely on Human Intelligence to a much greater
extent. Targeted political organizations will be infiltrated with a much
greater degree of aggressiveness, perhaps even surpassing levels of the
1960's. Frustration in law enforcement inability to penetrate the more
advanced criminal circles will probably result in very creative
interpretation of the rules, if not an outright disregard for them, to
secure convictions.
More alarming perhaps are the ramifications for banking transactions. In
the absence of an ability to monitor transactions electronically Human
Intelligence will be forced to fill in the gaps, creating a great demand
for informants within the banking and financial industries. The SEC simply
will be unable to function as it does today without electronic monitoring
of transactions. Instead brokerage firms, high profile investors and
financial institutions are more likely to be attacked with Human
Intelligence and informants, perhaps even outright theft of records. The
implications for even the moderate level investor are ominous.
Given the flexibility of constitutional interpretation demonstrated by the
New Deal legislation, is it any mystery that the new law enforcement
methodology will be supported by the courts, especially in the face of
complete law enforcement breakdown?
The only real practical legal recourse would be a clarification to the
courts by the legislature. However, if the current anti-crime atmosphere
endures it is highly unlikely that any legislator will go on record as a
obstacle to law enforcement by checking the courts back.
The Cypherpunks must ask themselves how to address these issues, and
recognize the potential political impact of high technology and the losing
law enforcement battle to keep up. Would a Cypherpunk victory merely be
bypassed by a clever end run? Is this a case of "Even when you win you
lose"?
- -uni- (Dark)
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--
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa - wichtig!
