Re: about a policy to require encrypted email. Here is a statement I would like to see become policy and law: "A provider of communications services cannot be held liable for the consequences of encrypted communications that pass though its system." Here is the argument to support it. If I am a common carrier, I am already off the liability hook by the nature of common carrier. Suppose I am not a common carrier, for example because I provide a value-added service such as electronic mail. Also suppose that I can't observe the contents of traffic that flows through my system because it is encrypted. Then I have no means to take any action whatsoever with regard whatever consequences might occur from that traffic. I cannot be held responsible for actions I cannot take, much less know of the existence of. Such a policy would give BBS operators a complete defense against claims of liability arising from email traffic. It doesn't solve the problem for public discussion areas, but it's a good start. It would also drive the deployment of encryption technology. Eric

My proposal:

"A provider of communications services cannot be held liable for the consequences of encrypted communications that pass though its system."

First let me point out that this wording is intended to be clear, not to be legally useful. This wording cannot stand for itself without reference to the rest of the body of law. I never intended it to. It is also a mistake to think that I am advocating the converse, namely, that the provider would be responsible for all unencrypted communications. Nor do I think that this should be the only defense a provider has available. gnu:

Far too simple. Suppose the provider is a BBS operator who *knows* what their users are passing through the system?

The defense of encrypted communications is not germane here. Such knowledge did not come from the communications because they were encrypted. If the provider could read them, then they weren't encrypted to the provider. Therefore such knowledge came from some other source. A claim that arises from such knowledge is not met by this criterion. The defense of encrypted communications is not a blanket defense.

Suppose the provider has keys to the encrypted communications?

Then the defense does not apply. If the provider has keys to the communications, then they are not encrypted as far as the provider is concerned. The question is not the _form_ of the communications, but their _legibility_.

Suppose those keys are only to be used under duress (e.g. under a court order)?

If the keys are in the possession of the provider and the provider and the user have an agreement that the provider is not to use them in any way other than archiving them, then the law cannot expect the provider to routinely breach that agreement to search for possibly illegal content. The court may then subpoena these keys if necessary.

Suppose the provider is a parent and the user is their teenage daughter?

The defense of encrypted communications is not germane here. There is a parent/child relation which creates a claim which the encrypted communication defense is irrelevant to.

Suppose the encryption is easily breakable?

The test of due diligence may be applied. If the state of the art is that the encryption is unbreakable, then the communications should be consider to be encrypted. If the cipher is automatically crackable, such as monoalphabetic substitution, then the communications should be consider _not_ encrypted. Remember, the question is not _form_, but _legibility_.

The principle you are looking for is that if the service provider has no *control* over the content, then they should have no *liability* for it either.

No, this is not the principle I was getting at. I was referring to a principle which was more restricted in its use but which is also clearer in its interpretation. This defense is a subset of the defense of no control. If you can't read the content, then _a fortiori_ you can't control it either. It's really very clear that if you have no basis for distinguishing communications except for size, time, sender, and recipient, that you can't act on anything that passes through the system.

The courts are gradually making that happen.

This is a good sign. I heartily approve. But it is easier to define legibility with regard to encryption than it is to define control. Referring to encrypted communications is much less ambiguous and should be considered a step in the larger direction. Eric