-----BEGIN PGP SIGNED MESSAGE----- At 11:44 PM 3/9/96 -0500, Chris Townsend wrote:
2804. Unlawful use of encryption to obstruct justice 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...
I think we may reasonably assume that this section was very carefully written, and thus it may contain meanings (or avoid containing meanings) that only a careful reading will disclose.
Contrary to some other sloppy interpretations that I've seen here recently from organizations that ought to know better, I see nothing in this section that limits the prosecution on this law to people who are actually participating in a crime. This distinction is vital. While the sentence is not diagrammed, it appears to be the INFORMATION which is in "furtherance to a felony," not the "obstructing" of that communication. The implication is that it is not necessary that a person know the exact information involved or be able to decrypt it; he needs only be deliberately using encryption to prevent the knowledge of what the information is about, or its routing. (As in an encrypted anonymous remailer, for instance.)
??? Your third sentence doesn't make any sense.
Well, I'll separate it for closer review:
While the sentence is not diagrammed, it appears to be the INFORMATION which is in "furtherance to a felony," not the "obstructing" of that communication.
The problem is that the original sentence (in the proposed law) is ambiguous. But I think the most likely interpretation is that it is the "information" which is in "furtherance of a felony," and "obstructing the commmication" of that information is the crime they define.
While I agree with your position, why would it *possibly* be a crime to interefere with felonious communcations?
The law is POORLY worded. Padgett Peterson noticed this yesterday, BTW, and commented on it on Cypherpunks. You've stumbled on the alternate meaning that he complained about. Realistically, however, I think we can probably agree that this meaning was not the one they intended; that's why for purposes of analysis I study the other meaning.
The lanuguage is lamentably unambiguous about the fact that it is the obstruction and not the information that is in furtherance of a felony...
I think I disagree. What we need, however, is an "emergency-call English major" who could diagram the various possibilities for us and we could study them separately. There's plenty of ambiguity in this sentence; but I think that is absolutely intentional.
Aside from this, it isn't clear what is meant by the phrase, "obstruct, impede, or prevent the communication of information in furtherance to a felony." An obvious problem is this: How will they know if the use of encryption actually had that effect? If it was UNsuccessful, then obviously that encryption did not prevent the government from obtaining information. If it was SUCCESSFUL, then how is the government to know that the communication in question was "in furtherance to a felony"? Even if they can prove the felony by other means, how can they show that the communication actually had anything to do with the crime?
It is quite conceivable that an unsuccessful attempt to obstruct justice might cause additional trouble, time, and expense to the guys in the white hats.
That depends on who you believe actually wears the white hats...
Note that the language does not distinguish between successful and unsuccessful attempts...though you're right that it seems that only unsuccessful attempts could be verified... the rest is clouded by your assumption that the information, rather than the obstruction, must be in furtherance of the crime...
Well, I invite you to try to construct an interpretation of the sentence in as many ways as you can imagine. I think you'll discover that it is practically intended to mislead.
Another problem: Encryption, per se, does not "prevent the communication of information." What it does, of course, is to prevent the UNDERSTANDING of that information. Do the writers of this bill intend to use this law to punish the LATTER effect, rather than the former?
Further, how is the person to be charged to know if his use of encryption had the effect of "obstruct[ing], imped[ing], or prevent[ing] the communication of that information? If he encrypts a file to his hard disk, and he doesn't intentionally send the file to the cops, how is he supposed to anticipate that the use of encryption had this effect? As far as HE knows, it was simply his decision to not send the file to the cops; he can't be expected to know that they'll show up the next morning with a search warrant and take his computer, can he? Would his refusal to provide the decrypt key constitute a violation of this section?
Probably. That's what the word "willful" is doing in there. Read carefully: it's willful obstruction, not willful encryption...
Justa sec... I think you've forgotten that merely running an anonymous encrypted remailer could be considered "willful obstruction." Now, if the communication wasn't "in furtherance to a felony" then it wouldn't be criminal (it would be a LEGAL "willful obstruction, right?) , but then again the operator wouldn't know that, would he? Which brings us to yet another ambiguity: The operator of an anonymous encrypted remailer wouldn't know that any given packet was "in furtherance of a felony" but he MIGHT be absolutely aware that any one of them COULD be! Does this rise to the level of violating the law? If not, why not?
I am not a lawyer, although I play one on the net.
I agree with your position, but you're not reading as closely as the enemy will...
Who, in this case, is "the enemy"? As far as I can see, "the enemy" are the people who wrote this section of the bill. While it's been a few decades since I last diagrammed a sentence, I will start by putting parentheses around sections of this sentence to separate it into what I believe is its "intended" meaning.
2804. Unlawful use of encryption to obstruct justice 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...
I challenge anyone to re-write this section to: 1. Achieve what he believes to be a "reasonable" result and 2. Avoids the criticisms that I've previously mentioned WRT this portion of the bill. Also, I think anyone who supports this kind of section should be able to give me a few examples of crimes whose investigation has (or could be) thwarted in a way that would violate this section. I've said it before and I'll say it again: The average citizen is essentially never the victim of a crime of this type. For whom, then, is this law written? I think it's written for the benefit of the politicians alone. They want to live. Jim Bell jimbell@pacifier.com -----BEGIN PGP SIGNATURE----- Version: 2.6.2 iQCVAwUBMUJryfqHVDBboB2dAQEZ1wQAhDS3fEz1Q8QaoZCf3c6W6e5fCDbfsz4J 3smXEMg/28xGyiwMiUN1gUjbVOYZKNdczaAMzIKx3I53Reig+9DQnc5CTGHqigaV y1yeiKdV1XKaZk9vV0ZCaTQ31Gv2/GV45eOVKoZRQOtQI+W6AgnrsegLH4TRBxkk NzQv2kNN4Hc= =dBew -----END PGP SIGNATURE-----