Subject: Re: [LEGAL] Crypto as Contraband? Reply-To: die@die.com References: <v03102809b1265edd4202@[207.167.93.63]> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.85 In-Reply-To: <v03102809b1265edd4202@[207.167.93.63]>; from Tim May on Fri, Mar 06, 1998 at 06:20:39PM -0800 On Fri, Mar 06, 1998 at 06:20:39PM -0800, Tim May wrote:

(Even with guns, in the U.S., there have historically been "grandfatherings" of existing guns. Not always, as with certain machine guns. And not with gold, which was declared contraband by the Reichsfuhrer in 1933.)

Could possession of PGP be still legal, but _use_ declared illegal?

(Not addressing the First Amendment issues, which are even stronger, but just the issue of retroactive contrabanding of something which was acquired legally, and by hundreds of thousands of law-abiding citizens.)

The House has just done this yesterday as mentioned in several items posted to this very list: From HR2369, the Wireless Communications Privacy Enchancement Act of 1998, passed by the House 414 to 1.... "(4) Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment ..." .... clause concerning satellite piracy gear omited ..... " , or is intended for any receipt, interception, divulgence, publication, or utilization of any communication in violation of subsection (a), shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation, or both. For purposes of all penalties and remedies established for violations of this paragraph, the prohibited activity established herein as it applies to each such device shall be deemed a separate violation." Subsection a: " ....... No person not being authorized by the sender shall intentionally intercept any radio communication *or* divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person..........." [note that *and* was changed by this bill to *or*, making interception itself criminal] The only exception being : "Nothing in this subsection prohibits an interception or disclosure of a communication as authorized by chapter 119 of title 18, United States Code." [which covers broadcast, ham, marine, aviation. governmental, and communications readily accessible to the general public, whatever that means] While this doesn't exactly retroactively ban *possession* of radio gear capable of intercepting banned radio communications, it provides extremely stiff felony level penalties for manufacturing, assembling, modifying, importing, exporting, selling, or distributing any radio receiving gear that might be construed to be intended for receipt or interception of any radio communications not on the allowed list. And these penalties apply to each individual sale. Thus selling an old scanner at a Saturday morning hamfest to a stranger for cash - a scanner legally purchased from Radio Shack in the era before cell phone frequencies were outlawed on scanners - could conceivably result in a $500,000 fine and a five year jail term. And Lord knows what horrible penalties could be assessed against innocent people selling the sort of oddball specialized communications gear and test equipment that are the stock in trade of many of the more interesting ham fests and swapmeets [MIT's monthly fleas for example]. Perhaps such informal personal sales will never be prosecuted, but most sales of gear at hamfests and the like are anonymous cash transactions between total strangers with every possiblity that the guy a table over with the video camera is filming your sale for evidence. And for those who like to hack, tinkering quietly in their basements with communications monitoring and decoding software and hardware, manufacture and assembly have been defined in other federal cases to include merely writing software for one's own use. Surely this would apply to creating cryptanalysis software for any form of radio communications at all, since it is not legal to intercept any radio communications that are "scrambled or encrypted". And there is no exception made for research and development or academic purposes. So yes, they have done at least as bad a thing to people who merely want to tinker with their radios and occasionally explore what is out there in the ether by passively and in private receiving radio signals as they have to gun owners, who at least possess a weapon capable of doing some serious harm. And there is not a single sentance in the legislation providing any kind of encouragement for the use of cryptography to protect the privacy of openly broadcast signals receivable for miles around, let alone mandating it. -- Dave Emery N1PRE, die@die.com DIE Consulting, Weston, Mass. PGP fingerprint = 2047/4D7B08D1 DE 6E E1 CC 1F 1D 96 E2 5D 27 BD B0 24 88 C3 18