At 2:41 PM 3/14/96, Robichaux, Paul E wrote:
Tim May said:
Suppose encryption is allowed, but only with key escrow? [...] And it might pass constitutional muster (for the same reasons the FCC jurisdiction over airwaves and the ban on encryption by ham operators, got approval.
The restriction on using encryption on the ham bands is an outgrowth of the world-wide spectrum allocation process. Spectrum's allocated by the International Telecommunications Union (ITU); every four years, the World Amateur Radio Council (WARC) meets to go over existing allocations. Sometimes hams lose (as when the 220MHz band went away) and sometimes they win.
The ITU accords were originally signed around WW I, when use of encryption on the radio bands was of great concern. The whole licensing system is based on the concept of an Amateur Radio _Service_, whose operators are licensed by the FCC to use a "public" resource. Said use is restricted by international treaties to which the US is a signatory.
The difference here is that the courts have upheld government restrictions on broadcast spectrum because it's a scarce resource. In the special case of encryption on ham bands, no one's ever even challenged the restriction AFAIK. As Duncan Frissell has preached here many times, bandwidth is no longer as scarce, so I think a constitutional challenge to an encryption ban would probably be workable.
Yes, and I said as much--about the bandwidth limitations--in my post. In the very next line after you stopped quoting!!!!!: "Sure, I understand that Internet bandwidth is not the same as the "public airwaves," but this subtlety may not be enough to stop the parallel from being successfully drawn. Especially if the phone companies and other threatened players are pushing hard for the FCC to step in and regulate." I'm not usually such a quibbler, but it irks me when people stop the quoting at a certain point, then make the same point made in the elided section, then say, "But bandwidth is a scarce resource." Besides which, I think the "scarce resource" argument against crypto over the airwaves is clearly a fig leaf. Only amateur, non-corporate users are affected. The intent of the rules, never repealed, seems more of an attempt to limit the widespread deployment of ham radio for espionage purposes (e.g., a ham sitting above a harbor area reporting on ship movements). This is why I said I could see a parallel argument for limiting crypto. And if other countries are needed to get an international treaty signed, there will be no shortage of such lap dogs available to do the bidding of the U.S. The most otherwise-hostile countries to the U.S. will jump at the chance to impose a worldwide ban on encrypted communications. --Tim May Boycott "Big Brother Inside" software! We got computers, we're tapping phone lines, we know that that ain't allowed. ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^756839 - 1 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."