Leahy's guillotine.
-----BEGIN PGP SIGNED MESSAGE----- To: All Recent Senate crypto bill Mr. LEAHY (for himself, Mr. BURNS, and MRS. MURRAY) introduced the following bill; which was read twice and referred to the Committee [stuff deleted] 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.) Moreover, the errors among the organizations that are now apparently declaring their general support for this amendment are apparently based on a false view of the effects of this section. 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? 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? Or, if he sends that file to another person, and the cops happen to be (secretly) listening in, how is he to know? Does their inability to decrypt that information constitute a violation of this section? After all, the cops did indeed get the encrypted file; they simply don't know what to do with it! They are already "impeded" in UNDERSTANDING that file; a broad interpretation of this law would make the person who is wiretapped, as well as the person to/from whom the file is send, guilty of this crime. I'll be blunt, because it's what I do best: Anybody who reads this section of the bill and is NOT worried about its myriad possible interpretations is a fool or worse. I'd welcome a lawyer's interpretation of this law, but I suspect he'd be just as worried as I am: This section is a disaster waiting to happen; it is genuinely a Pandora's box that is just waiting to be opened by some sleazy prosecutor. Further, any organization with even a shred of credibility that does not condition its support for this bill on the complete removal of this section is doing the rest of us an extreme disservice: It is trading on and risking its reputation, because many of them are issuing opinions of this section of the bill with assurances that it will only be used against "guilty" people, when there is simply no way to know if this is going to be true. Wake up, people. These days, the only difference between a limousine and a tumbrel is the destination... Jim Bell jimbell@pacifier.com Klaatu Burada Nikto -----BEGIN PGP SIGNATURE----- Version: 2.6.2 iQCVAwUBMUIpdPqHVDBboB2dAQHoxgP/W3QVLGB4xfRQVVf/Udh+sa72Jhy64ON1 Gp2tfiTRYN1LkbpicZI84Hl2m0P2+D3cCCwEL87FDJgKOz2VFHowhGB+cQYIbw5X te3JNT+DFJQ5y+rdDptnraZkToWJIqVFohOguKP3uPi0lQVK5J331QlfQrt1Fuxi qpVf/zAE5yI= =dpTg -----END PGP SIGNATURE-----
On Sat, 9 Mar 1996, jim bell wrote:
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To: All
Recent Senate crypto bill Mr. LEAHY (for himself, Mr. BURNS, and MRS. MURRAY) introduced the following bill; which was read twice and referred to the Committee
[stuff deleted]
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. While I agree with your position, why would it *possibly* be a crime to interefere with felonious communcations? The lanuguage is lamentably unambiguous about the fact that it is the obstruction and not the information that is in furtherance of a felony...
Moreover, the errors among the organizations that are now apparently declaring their general support for this amendment are apparently based on a false view of the effects of this section.
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. 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...
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... 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... -cpt townsend@fly.net
participants (2)
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Chris Townsend -
jim bell