-----BEGIN PGP SIGNED MESSAGE----- At 09:55 PM 3/6/96 -0500, Matt Blaze wrote:
No, what the wording seems to outlaw was the use of encryption to obstruct the commission of the crime, not the investigation. Read it again please.
I suppose you could parse it that way if you really wanted to,
If you acknowledge that, you are agreeing that a prosecutor could take that position to court, and until the Supreme Court decides he's wrong, he gets to harass citizens.
but it seems to me that the obvious meaning of this rather tortured language: "Whoever willfully endeavors by means of encryption to obstruct, impede, or prevent the communication of information in furtherance to a felony which may be prosecuted in a court of the United States, to an investigative or law enforcement officer shall..." is "...willfully endeavoring to obstruct by means of encryption the communication to an investigative or law enforcement officer information that is in furtherance of a felony..."
But what, exactly, is included in that latter meaning? Does a person who runs an anonymous encrypted remailer, who is fully aware that somebody could be using his system at any moment to break a law, classify as in violation? That's the problem, I think: The government wants to shut down the USE of encryption among those it decides to target, while ostensibly keeping encryption legal.
I think no reasonable person (judge, jury or prosecutor) would interpret it any other way.
You're just as optimistic as Weinstein. I'm not.
Fortunately, the law is not a program that gets run on a computer. People have to interpret it.
That's a mixed blessing. Are you aware of the fact that in the 1930's, the Supreme Court ruled that a farmer growing corn and feeding it to his pigs was engaging in "interstate commerce" because (the court "reasoned") if he didn't grow the corn it would have to be brought in to the state from another state (or displace other usages which would, themselves, have to need a similar import) so he was doing "interstate commerce." (and just a few years later, in three separate cases, they upheld the internment of Japanese-Americans on the west coast as a preventative measure...) Ignore this all you want, but the fact is that judges are sleazy people who will do exactly what they want to do regardless of how wrong it is.
In the case of this section, the awkward wording is an artificat of several iterations of narrowing it from what was originally a rather broad crime (as it still is in the House bill).
Whose fingerprints are on this portion of the bill?
I would rather have the awkward (but still clear) wording than a broader crime.
I don't want any "new crimes," except possibly those that punish acts by government employees and officeholders.
As it stands, several lawyers whose judgement I trust have told me that this provision is worded narrowly enough to apply only to people who can already be conviceted of the underlying crime and who can be proven to have used encryption for the SOLE purpose of thwarting law enforcement.
That's not how the proposed law reads. I realize that what you were given may be the "Walt Disney" version of the law, but reality will be dramatically different, I can assure you. Maybe you ought to ask one of these lawyers if he is willing to write a legal brief describing the "worst-case scenario": What a malicious prosecutor COULD do with this law if he so chose. And remind him that the operators of encrypted remailers don't have the funds to take any appeals to the Supreme Court: Lawyers are usually trained to knee-jerk assume that they can eventually get the "right" decision from the SC, which assumes _they_are_hired_ by a defendant who can afford this route.
I don't like this new crime (since it still stigmatizes encryption as being something criminals use), but I can probably live with it.
I cannot. I _will_not_.
Personally, on balance, I think the bill, as written, is a big enough step forward to be worth supporting. -matt
It sounds like you're assuming that this bill is a "take it or leave it" type of proposition. I'm not. I see no reason to come to some sort of a "Siskel and Ebert"-type of thumbs-up/thumbs-down decision on the whole thing. I'll say it again: If the only way this bill can be passed is the inclusion of this particular section, then that must mean that somebody "out there" must want that part REALLY badly. And if they want it that badly, I want it gone even more! Jim Bell jimbell@pacifier.com -----BEGIN PGP SIGNATURE----- Version: 2.6.2 iQCVAwUBMUMjBvqHVDBboB2dAQGAlgP+IbkQsBm3FPKQNGQe/RvYAYHaoPvWVeZd 86AFx8hqi60nWvWUsAnZ0qGofjaMf1xNW49XKPOhY1lM3uJmeOnp4Wai0UOcwzSM qvUufKkgyeEjC0RJgWqGWg1lKVmHKp4O3mava8jjYv8xQ4yYHP+yvHkAtGN9iLZr 3hjxMBp5S+8= =2Ym6 -----END PGP SIGNATURE-----