unSAFE

---------- Forwarded message ---------- Date: Fri, 2 May 1997 01:04:17 -0400 From: Michael Sims <jellicle@inch.com> To: fight-censorship@vorlon.mit.edu Cc: Jonah Seiger <jseiger@cdt.org>, abd@cdt.org, Tim May <tcmay@got.net>, declan@well.com Subject: unSAFE Well, I've read Mr. Davidson's defense of the SAFE bill and of course Mr. May's earlier argument against it. A few more comments. Both analyses (all analyses I've seen) ignore this little fun fun tidbit below: <--QUOTE--> (a) AMENDMENT TO EXPORT ADMINISTRATION ACT OF 1979. -- Section 17 of the Export Administration Act of 1979 (50 U.S.C. App. 2416) is amended by adding at the end thereof the following new subsection: "(1) GENERAL RULE.--Subject to paragraphs (2), (3), and (4), the Secretary shall have exclusive authority to control exports of all computer hard ware, software, and technology for information security (including encryption), except that which is specifically designed, or modified for military use, including command, control, and intelligence applications. "(2) ITEMS NOT REQUIRING LICENSES. -- No validated license may be required, EXCEPT PURSUANT TO THE TRADING WITH THE ENEMY ACT OR THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT (but only to the extent that the authority of such Act is not exercised to extend controls imposed under this Act), for the export or reexport of .... (b) CONTINUATION OF EXPORT ADMINISTRATION ACT.-For purposes of carrying out the amendment made by subsection (a), the Export Administration Act of 1979 shall be deemed to be in effect. <--/QUOTE--> {emphasis added, EXCEPT....ACT} The Trading with the Enemy Act was passed in 1917 and amended (importantly) in 1933 (Great Depression, New Deal). Originally, it was intended to simply declare that when the nation was at war, it was total war - the US would not honor any obligations or respect any rights of citizens of enemy, warring countries. It specifically allowed the president to regulate as he wished, during wartime, the assets and fiscal transactions conducted by an enemy country. (Confiscation and all that). Fair enough, for a WWI era law. Here how it read. Recall, this is during a declared war only. "That the President may investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange, export or earmarkings of gold or silver coin or bullion or currency, transfers of credit in any form (other than credits relating solely to transactions to be executed wholly within the United States)". In 1933 it was amended, hastily, sneakily, back-door-ily, in order to grant incoming President Roosevelt extraordinary powers over the money supply of the nation. It was amended to declare all citizens of the United States to be "enemies", under its power during any time of war *or national emergency*. That is, the "Trading with the Enemy" act now applied to all citizens of the US and all of their interpersonal transactions. Roosevelt declared a national emergency, and took the country off the gold standard, pumping cash into the system and ending the depression. But doing so required power not earlier available. Thus the new wording below. This is now during war *or national emergency declared by the president*. "through any agency that he may designate, or otherwise, investigate, regulate or prohibit under such rules and regulations as he may prescribe by means of licenses or otherwise, any transactions in foreign exchange, transfers of credit between or payments by banking institutions as defined by the President and export, hoarding, melting or earmarking of gold or silver coin or bullion or currency by any person within the United States or anyplace subject to the jurisdiction thereof." Roosevelt of course declared a national emergency and proceeded on his way. However, he declared it in such a way as to make it continue until revoked. This country remains in a state of emergency today, and will do so forthe foreseeable future, and the President retains the extraordinary powers intended solely for wartime. These include the total ability to regulate commerce in the United States. I recommend Michael Froomkin's excellent (and lengthy) article on the subject at http://www.law.miami.edu/~froomkin/articles/planet_clipper.htm. Although about the Clipper chip, if you go about 60% through the article he has a solid discussion of the EAA, IEEPA and the presidential power thereunder. It's 50 U.S.C. Sec. 1701 and following. Section 1702 there has the meat of it. This Act allows the President, once he has declared a state of emergency, to regulate essentially any commerce with another nation, except those items directly identified as "speech" - magazines, papers, etc. President Clinton has twice declared a state of emergency regarding export control regulations, the latest on August 15, 1996. Mr. Seiger, Mr. Davidson, I hope that you merely did not understand the giant, drive-a-truck-through loophole present in this SAFE bill. By guaranteeing free export EXCEPT pursuant to whatever actions are taken under the IEEPA or Trading with the Enemy Act, it guarantees absolutely nothing at all. Those laws combined provide the President with complete power to regulate the sale or export of crypto, anywhere. This law, Mr. Davidson's assertions notwithstanding, gives nothing at all while taking a great deal. Every "right" the SAFE act grants is already possessed. The law also poses severe penalties for using crypto in furtherance of a crime. As an example, I call Crook 2 on my cell phone while cruising down the street. It is later determined that we were plotting a bank heist. Extra five years for using encryption to further my crime. Yep, just a plain old cell phone. For that matter, almost all cordless phones today use an encrypt/decrypt routine for their transmissions as well. Anyone using PGP on their computer? Crime involved at least one email sent for any reason? Extra five years. This will hardly support the spread of encryption. It gives law enforcement guaranteed access to keys: an awful precedent. Any law enforcement officer or investigative officer (attornies prosecuting a case) who is empowered to prosecute or participate in the prosecution of offenses under this act may compel disclosure of keys. All one needs is an escrow provision to ensure that such a key is available for the government to retrieve - and such a provision is perfectly legal for the president to impose. Thus, an FBI agent, who is "empowered" to investigate crimes under this act, can compel disclosure, by a third party, of your keys - without cause to even believe an offense has actually been committed. Without judicial review. This will further the spread of strong crypto? I freely admit I'm not an expert US export control law, which is designed to be confusing. But I believe that all of the privacy and crypto organizations which have signed on to SAFE are being sold a bill of goods, a law which says in bold letters "freedom" "freedom" "prohibition" but provides no freedoms, and does not prohibit key escrow in any fashion. I urge you _most strongly_ to consult with legal experts on these matters and verify that what I have said is true. THIS BILL GIVES NOTHING AT ALL AND MAKES USE OF CRYPTO WORTH FIVE YEARS IN PRISON. Continued support of this bill by privacy and crypto advocates is outrageous. Newsletters supporting this bill by such organizations have the effect of perpetuating the false impressions of what this law does and does not do, and need to be immediately brought in line with reality. While I am only cc'ing CDT reps on this matter, I give free permission to forward this post to any/all other crypto and privacy supporting organizations or listservs for comment. -- Michael Sims