I remember reading this in the March ACM and thinking,"Man. He hit that right on the head." When I ran across this transcript in Computer Select earlier this morning (while looking for various encryption products, no less), I thought those of you who had not already seen it would be struck by John Perry's insights. BTW, I also have the full transcripts of Dorothy Denning's, William A. Bayse's (Assistant Director, FBI Technical Services Division) and Lewis M. Branscomb's (Harvard University) articles which appeared in the same issue with regards to Digital Telephony, if anyone cares for me to post them. Looking back on the progression of events, beginning with the debate of the Digital Telephony proposal and subsequently the proposal currently (officially) referred to as the "Key Escrow" Chip (and its associated escrow scheme), I can't help but surmise that the whole ball of wax is geared towards allowing the Government the ability to effectively eavesdrop on its citizens communications in the face of advancing technology, without regard to privacy matters. 8<---- Begin forwarded text --------- Journal: Communications of the ACM March 1993 v36 n3 p21(3) * Full Text COPYRIGHT Association for Computing Machinery Inc.1993. ---------------------------------------------------------------------- Title: Bill o' rights. (impact of technology on basic civil rights; humor) (Electronic Frontier) Author: Barlow, John Perry ---------------------------------------------------------------------- Full Text: *Note* Only Text is presented here; see printed issues for graphics. It has been almost three years since I first heard of the Secret Service raids on Steve Jackson Games and the cyberurchins from the Legion of Doom. These federal exploits, recently chronicled in Bruce Sterling's book Hacker Crackdown, precipitated the formation of the Electronic Frontier Foundation and kicked loose an international digital liberties movement which is still growing by leaps and conferences. I am greatly encouraged by the heightened awareness among the citizens of the Global Net of our rights, responsibilities, and opportunities. I am also heartened that so many good minds now tug at the legal, ethical, and social riddles which come from digitizing every damned thing. The social contract of Cyberspace is being developed with astonishing rapidity, considering that we are still deaf, dumb, and disembodied in here. Meanwhile, back in the Physical World, I continue to be haunted by the words of the first lawyer I called on behalf of Steve Jackson, Phiber Optik, and Acid Phreak back in the spring of 1990. This was Eric Lieberman of the prestigious New York civil liberties firm Rabinowitz, Boudin, Standard, Krinsky, and Lieberman. I told him how the Secret Service had descended on my acquaintances and taken every scrap of circuitry or magnetized oxide they could find. This had included not only computers and disks, but clock radios and audio cassettes. I told him that, because no charges had been filed, the government was providing their targets no legal opportunity to recoup their confiscated equipment and data. (In fact, most of the victims of Operation Sun Devil still have neither been charged nor had their property returned to them.) [This issue has been somewhat resolved with the recent ruling in favor of Steve Jackson and the subsequent award of damages.] The searches were anything but surgical and the seizures appeared directed less at gathering evidence than inflicting punishment without the bothersome formality of a trial. I asked Lieberman if the Secret Service might not be violating the Fourth Amendment's assurance of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." He laughed bitterly. "I think if you take a look at case law for the last ten years or so, you will find that the Fourth Amendment has pretty much gone away," he said. I did. He was right. A lot of what remained of it was flushed a year later when the Rehnquist Court declared that in the presence of "probable cause" ...a phrase of inviting openness...law enforcement officials could search first and obtain warrants later. Furthermore, I learned that through such sweeping prosecutorial enablements as RICO and Zero Tolerance, the authorities could entract their own unadjudicated administrative "fines" by keeping much of what they seized for their own uses. (This incentive often leads to disproportionalities between "punishment" and "crime" which even Kafka might have found a bit over the top. I know of one case in which the DEA acquired a $14 million Gulfstream bizjet from a charter operator because one of its clients left half a gram of cocaine in its washroom.) I tried to image a kind of interactive Bill of Rights in which amendments would fade to invisibility as they became meaningless, but I knew that was hardly necessary. The citizens of Stalin's Soviet Union had a constitutional guarantee of free expression which obviously, like our own, allowed some room for judicial interpretation. It occurred to me then that a more honest approach might be to maintain a concordant Bill of Rights, running in real time and providing up-to-the-minute weather reports from the federal bench, but I never got around to it. Recently I started thinking about it again. These thoughts were inspired partly by Dorothy Denning's apology for the FBI's digital telephony proposal (which appears in this issue). I found her analysis surprisingly persuasive, but I also found it fundamentally based on an assumption I no longer share: the ability of the Bill of Rights to restrain government, now or in the future. The men who drafted the U.S. Constitution and its first ten amendments knew something that we have largely forgotten: Government exist to limit freedom. That's their job. And to the extent that utterly unbridled liberty seems to favor the reptile in us, a little government is not such a bad thing. But it never knows when to quit. As there is no limit to either human imagination or creativity in the wicked service of the Self, so it is always easy for our official protectors to envision new atrocities to prevent. Knowing this, James Madison and company designed a government which was slightly broken up front. They intentionally created a few wrenches to cast into the works, and these impediments to smooth governmental operation were the Bill of Rights. Lately though, we find ourselves living in a world where the dangers we perceive are creatures of information rather than experience. Since the devil one knows is always less fearsome than the worst one can imagine, there is no limit to how terrifying or potent these dangers can seem. Very few of us, if any, have ever felt the malign presence of a real, live terrorist or drug lord or Mafia capo or dark-side hacker. They are projected into our consciousness by the media and the government, both of which profit directly from our fear of them. These enemies are, in our (tele)visions of them, entirely lacking in human decency or conscience. There is no reason they should be mollycoddled with constitutional rights. And so, we have become increasingly willing to extend to government what the Founding Fathers would not: real efficiency. The courts have been updating the Bill of Rights to fit modern times and perils, without anyone having to go through the cumbersome procedure of formal amendment. The result, I would suggest with only a little sarcasm or hyperbole, has come to look something like this: Bill O' Rights AMENDMENT 1 Congress shall encourage the practice of Judeo-Christian religion by its own public exercise thereof and shall make no laws abridging the freedom of responsible speech, unless such speech is in a digitized form or contains material which is copyrighted, classified, proprietary, or deeply offensive to non-Europeans, nonmales, differently abled or alternatively preferenced persons; or the right of the people peaceably to assemble, unless such assembly is taking place on corporate or military property or within an electronic environment, or to make petitions to the government for a redress of grievances, unless those grievances relate to national security. AMENDMENT 2 A well-regulated militia having become irrelevant to the security of the state, the right of the people to keep and bear arms against one another shall nevertheless remain uninfringed, excepting such arms as may be afforded by the poor or those perferred by drug pushers, terrorists, and organized criminals, which shall be banned. AMENDMENT 3 No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, unless that house is thought to have been used for the distribution of illegal substances. AMENDMENT 4 The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, may be suspended to protect public welfare, and upon the unsupported suspicion of law enforcement officials, any place or conveyance shall be subject to immediate search, and any such places or conveyances or property within them may be permanently confiscated without further judicial proceeding. AMENDMENT 5 Any person may be held to answer for a capital, or otherwise infamous crime involving illicit substances, terrorism, or child pornography, or upon any suspicion whatever; and may be subject for the same offense to be twice put in jeopardy of life or limb, once by the state courts and again by the federal judiciary; and may be compelled by various means, including the forced submission of breath samples, bodily fluids, or encryption keys, to be a witness against himself, refusal to do so constituting an admission of guilt; and may be deprived of life, liberty, or property without further legal delay; and any property thereby forfeited shall be dedicated to the discretionary use of law enforcement agencies. AMENDMENT 6 In all criminal prosecutions, the accused shall enjoy the right to a speedy and private plea bargaining session before pleading guilty. He is entitled to the assistance of underpaid and indifferent counsel to negotiate his sentence, except where such sentence falls under federal mandatory sentencing requirements. AMENDMENT 7 In suits at common law, where the contesting parties have nearly unlimited resources to spend on legal fees, the right of trail by jury shall be preserved. AMENDMENT 8 Sufficient bail may be required to ensure that dangerous criminals will remain in custody, where cruel punishments are usually inflicted. AMENDMENT 9 The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others which may be asserted by the government as required to preserve public order, family values, or national security. AMENDMENT 10 The powers not delegated to the U.S. by the Constitution, shall be reserved to the U.S. Departments of Justice and Treasury, except when the states are willing to forsake federal funding. [John P. Barlow is a technological author and the cofounder (with Mitch Kapor) of the Electronic Frontier Foundation. He currently lives in Wyoming, New York and "in Cyberspace." His email address is barlow @eff.org.] Paul Ferguson | The future is now. Network Integrator | History will tell the tale; Centreville, Virginia USA | We must endure and struggle fergp@sytex.com | to shape it. Stop the Wiretap (Clipper/Capstone) Chip.