At 10:42 AM 11/8/1996, Timothy C. May wrote:

And whenever any of us raised issues of Constitutionality of the measures Peter was predicting, such as random searches, conviction based on possession of an illegal tool, forced escrow, etc., it seemed that Peter's response was usually some variant of:

"Won't matter. The people will demand action."

Yes, in a pogrom situation, the Constitution is not much protection. However, you can do quite a bit without straying far outside the bounds of the Constitution. Certainly without straying farther than the Supreme Court has already done. Random searches are probably not necessary and the procedure of issuing search warrants need not change. Instead of making the transmission of encrypted messages illegal, encrypted messages become just cause for a search of somebody's house for illegal cryptography software. There is no prior restraint of free speech in this legal scenario. What you make illegal is the possession and operation of cryptography software. Consider this analogy: I get up on a podium and announce "I shot the Sheriff." I have a legal right to do this. However, if somebody did recently shoot the sheriff, it is also likely that my house will be searched. The degree to which the Constitution needs to be eroded is slight if there is broad popular support for the measures. The reason for this is that the list of suspects will be short. If the list of suspects is short, you can go to some trouble to follow Constitutional procedures with each one. Witch hunts and random searches will occur if there is large minority devoted to pursuing cryptoanarchy and a majority which is just as strongly devoted to putting a stop to it. It is not one hundred percent clear to me that the operation of cryptographic software is speech. The software certainly does not add meaning to the messages you are sending. Unfortunately, the term "free speech" is vague and confusing. You can broadcast any number you like, unless it happens to be the number that corresponds to the Windows95 executable. You can say anything you like, but you can't say anything that is untrue about a private person. Where in the First Amendment is any distinction drawn between public and private people? Why am I allowed to say untrue things about public figures? And so on. There are any number of ways to make the possession of cryptographic software illegal. For instance, the government could change the patent laws to make cryptography patents have a 100 year term. (This will be done to promote cryptography. ;-) Then, after the evils of cryptography are "discovered" the government can nationalize the software patents and beef up the penalties for patent violations.

But I think this "nightmare scenario" is implausible.

I agree. The reason we have to consider this "straw man" is that it is considered to be a legitimate policy discussion amongst people at the highest levels of our society.

And the points many of us have been making about digital commerce, the central role of the Net in so many things, and the international connections, mean that a pogrom launched against the Net just isn't going to fly. Too many corporate interests are at stake.

I agree with this, too. I think a lot of people have been sitting on the fence waiting to see which way the crypto ball is going to bounce. I think it's going to bounce towards cryptoanarchy. Peter Hendrickson ph@netcom.com