At 9:11 PM 11/7/1996, Timothy C. May wrote:

At 5:16 PM -0800 11/7/96, Peter Hendrickson wrote:

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While the term "police state" is not well defined, I do not believe it applies to what I am describing. (There is a risk that it could develop, however.)

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Laws forbidding the use of cryptography have ominous free speech implications as we would be attempting to outlaw concealed meaning. Concealed meaning can be pretty well concealed and that makes for difficult and dangerous legal questions.

If the only means of detection is raiding homes to inspect them for contraband--something not even done during the height of the anti-drug hysteria, at least not on a regular basis--then I stand by my comment that stopping private use of cryptography requires a police state such as the world has not yet seen.

Perhaps initially, during the state of emergency declared by our heroic and courageous President, some unfortunate abuses of authority may occur. But, after the first 90% of the terrorists are incarcerated, we will have the luxury of returning to an orderly legal system replete with search warrants. Keep in mind that the drug laws face a large number of dedicated opponents who will go to great trouble to evade the laws. I suspect that these people are in the majority, although I don't know for sure. I find it hard to believe that any sizeable number of people would find the Four Horsemen scenario tolerable.

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On the other hand, the action of running a program which uses forbidden crypto systems is pretty unambiguous and could be effectively isolated from other kinds of speech.

Oh? How? If the output of such a program looks like quantization or Johnson noise in a recording, then how could this form of "speech" be effectively isolated?

Sorry, I wasn't very clear. What I mean is that once you've been caught red handed with a stego program, the game is up. That is, I think it is possible to get ideas of who is operating illegally from interceptions. (I may well be wrong.) But, the actual evidence is easily collected off your computer. A program which performs encryption or stego is not very ambiguous about what it is doing.

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Many kinds of speech are already illegal. For instance, I am not allowed to copy somebody else's speech because it would violate copyright laws. I am not allowed to break verbal contracts. In essence, I am punished later for the something I said if I am forced to keep my word. But, this does not constitute a police state.

Careful! Some of your examples are not examples of _prohibited_ speech, but are instead examples of _actionable_ speech. The Constitution is fairly clear that the government cannot be a filter or censor for speech.

Hence, requirements that people speak in English, or in some other language that the government can understand, is not required. Not even in a criminal case, as a matter of fact. (If I speak only Skansko-Bravatlian, and am the only such speaker in the world, I cannot be compelled to study English or even Spanish prior to a trial.)

Requiring people to speak or write in a language that is understandable to some GS-10 at Fort Meade would appear to violate the First Amendment in a rather serious way. As encrypted speech is really just another language (tell me I'm wrong on this, anyone), encrypted speech appears to be fully protected by the First Amendment, which says that Congress shall make no law about speech, blah blah.

Under the right legal environment, and we are not far from it, none of this matters. The Courts can be quite liberal when they think there is a good reason for it. Take seating in restaurants. If you read the Constitution you won't find where the Federal Government is empowered to regulate this. The Courts decided that the Commerce Clause was a reasonable justification. This argument resembles the peace of God. All the Justices have to say is that the Constitution does not specify private speech, just public speech. The same way it doesn't say "assault rifle" it says "arms". The same way it doesn't say "commercial speech" just "speech". The Constitution will likely be a powerful support for cryptoanarchy, but only because I doubt widespread opposition to strong cryptography will arise.

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What I am proposing would not require an end to fair trials or warrants or really any other legal customs we have.

I strongly disagree. Prosecution would involve making certain _forms_ of speech illegal (not the same thing as the _content_ being illegal, as in ordering the kililng of another, or treason, or shouting "Fire!" improperly).

But we are not objecting to content! We don't care what goes inside the encryption - unless it involves extortion, murder, child pornography, or weapons data - we care that communication has been limited. Cryptography is not a language because nobody can understand it but the recipient. We simply want the recipient to share with the rest of the class - that is an independent legal issue from persecution for one's beliefs which is of course, and thankfully, unconstitutional your Honor. Or how about this argument: It isn't the encrypted message that we care about so much, your Honor. We care that it is evidence that the perpetrator did commit the illegal act of encrypting his communications using military-grade technology which is now highly illegal. When I say it doesn't really put an end to most legal customs, I mean that the courts do not have to behave all that capriciously to make the law stick. For the most part people know how not to break the law and the people who are convicted did break it. Other speech rights do not immediately dissolve away. Yes, there is a risk that they will do so later, but the police state is not required to suppress cryptoanarchy if there is strong public sentiment supporting it.

And detection and collection of evidence would almost certainly involve illegal searches and seizures.

Not in the presence of wide public support. Peter Hendrickson ph@netcom.com