Tim May <tcmay@got.net> writes:
I agree that draconian crypto laws are afoot, but I don't discount the power of constitutional challenges.
So long as the First and Fourth (and the Fifth may apply, too) Amendments remain in force, compelling a person to speak in certain ways and monitoring what he says privately without a proper court order is unconstitutional.
At least the convoluted stuff in Clipper about "LEAF" fields, splitting of keys between agencies, proper court orders, etc., had the "fig LEAF" of protecting some basic constitutional rights. A straight "encrypt to the government's key" is too crude to withstand any court scrutiny.
The Clipper set up claimed to have split databases. I wonder. Secret splitting is being described as a possibility for pgp6.0. Perhaps they'll use: thoughtpolice1@nsa.gov thoughtpolice2@nsa.gov as the two half GMR fields. And they'll promise not to combine the two halves without a court order (except for national security purposes, of course). Naturally a court would never violate lawyer client confidentiality, etc., so they might argue this was constitutionally ok.
I'm obviously not a lawyer, let alone a constitutional scholar, but I think I'm solid footing here. A crude, blanket order to include the government in all communications would absolutely be struck down as a chilling of speech (political or otherwise) and as an unlawful search and seizure of one's papers.
An example of a somewhat analogous setup was the digital telephony wiretapping order. That was passed. Not struck down yet (though floundering because it cost way more money than the Feds claimed it would). What about lawyer client confidentiality over telephone? They would argue I suppose that you had insufficient expectation of privacy? Perhaps they would use similar arguments to say that it's not a problem for the same access to emails. And anyway, since when has unconstitutionality meant anything to politicians, law enforcement agents, and spooks. What about guns, hmm. That one was clear enough in the constitution if anything ever was, and yet the USG is slowly headed the same way as the UK government. CDA got struck down which was good, but unconstitutionality doesn't seem to be adequate protection. Adam -- Now officially an EAR violation... Have *you* exported RSA today? --> http://www.dcs.ex.ac.uk/~aba/rsa/ print pack"C*",split/\D+/,`echo "16iII*o\U@{$/=$z;[(pop,pop,unpack"H*",<> )]}\EsMsKsN0[lN*1lK[d2%Sa2/d0<X+d*lMLa^*lN%0]dsXx++lMlN/dsM0<J]dsJxp"|dc`