-----BEGIN PGP SIGNED MESSAGE----- [from Cypherpunks] Those of you who are confident that the Leahy bill won't be interpreted to punish innocent people (for example, operators of encrypted anonymous remailers) who are not directly engaged in criminal activity should read the following article, that appeared as the George Will column March 10, in my local paper. Maybe it will give you a healthy dose of REALITY (remember reality, fellows?): "Taking Property from innocents doesn't fit conservative ideals" by George F. Will. In 1827, in a case concerning the forfeiture of a Spanish ship used for piracy, the U.S. Supreme Court held that the owner could lose his ship even if he was not even aware of the use of the ship for piracy: "the thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing." That, and a long line of cases in that vein, is why the court last week said Tina Bennis has no right to compensation for her half-interest in the car she co-owned with her husband John and which was forfeited after he was convicted in Detroit of engaging in sexual activity with a prostitute in the car. The court was divided 5-4 in rejecting Mrs. Bennis' contention that the forfeiture violated her 14th amendment right to due process and her Fifth Amendment right not to have property take without just conpensation. Justice John Paul Stevens, joined in dissent by David H. Souter and Stephen Breyer (anthony M. Kennedy dissented separately), condemned the "blatant unfairness" of punishing an innocent person. And Justice Clarence Thomas, although concurring separately in the opinion written by Chief Justice WIlliam H. Rehnquist and joined by Sandra Day O'Connor, Antonin Scalia, Ruth Bader Ginsburg and Thomas, said that what was done to Mrs. Bennis by Michigan law was "intensely undesireable." Because many governments are increasingly agressive in their use of forfeiture as punishment for prostitution, drug, and other offenses, this decision, although supported by the most conservative justices, should trouble conservatives: it involves conflicts between three things they value- deference to states' legislative judgments, fidelity to precedent and respect for property rights. Bennis made his mistake in 1988 in an 11-year old Pontiac he and his wife had recently purchased for $600. The trial court judge had discretion to order payment of half the sale proceeds to "the innocent co-titleholder," but commented that "there's practically nothing left" after deduction of police, prosecutorial, and court costs." Ginsburg noted that the question at issue was not whether compensating Mrs. Bennis would have been fair but whether compensation was a constitutional right. And Ginsburg's concurring opinion suggests that she would have affirmed such a right had not the car belonged as much to Mr. Bennis as to Mrs. Bennis. Although Mrs. Bennis neither consented to nor knew of the misuse of the car, Rehnquist cited the court's language in a 1926 case, that it is common "for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it." That practice, the court had said five years earlier, is "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." Certainly the court should not casually unsettle what it has firmly fixed. Nor should the court relieve Congress of its role in correcting dubious legal practices. the chairman of the House Judiciary Committee, Rep. Henry Hyde of Illinois, has drafted the Civil Asset Forfeiture Reform Act that would, among other things, strengthen protection of innocent property owners. Still, sometimes the court has had to say, in effect, "Well, come to think about it... ." It took four years of carnage and then the 13th amendment to correct what the court did in 1857 in Dred Scott vs. Sanford. But in other cases the court has tidied up after itself. In 1896 in Plessy vs. Ferguson, the court held that "separate but equal" public facilities segregated by race were compatible with the 14th Amendment's guarantee of equal protection of the laws. Later, the court conducted a protracted retreat from that position. In 1905 in Lockner vs. New York, as in similar cases, the court held that a New York law limiting bakers to a 10-hour workday violatedd teh DUe Process clause. By 1963, Justice Hugo Black could assert that the Lochner doctrint of "substantive due process," that the court can overturn laws it considers unwise, "has long since been discarded." (Actually, it has long since been smuggled into liberal jurisprudence to support a different social policy agenda.) In his obviously uneasy confurring opinion in the court's decision about Mrs. Bennis' car, Thomas says the case "is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesireable." Quite so. So it is time for the political branches of state governments and the federal government to act on the clear signals from Thomas and others concerning the need to protect innocent persons who cannot reasonably be considered culpably negligent concerning the misuse of their property. [end of article] To those suckers who say that they genuinely believe that the operator of an anonymous encrypted remailer will not be subject to criminal or civil penalties for what ends up being the misuse of their system, I would like to re-state a quote from the article above: "Although Mrs. Bennis neither consented to nor knew of the misuse of the car, Rehnquist cited the court's language in a 1926 case, that it is common "for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it." That practice, the court had said five years earlier, is "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." " Does this sound familiar? Doesn't it hit just a bit too close to home? I argue that a person who runs an anonymous encrypted remailer could be clearly claimed to be "entrusting" that "property" to someone else, under the meaning of the above paragraph. At least, that is the position the prosecutors could surely take, especially given this Supreme Court decision. In fact, I would argue that a remailer operator will actually be considered MORE responsible, legally, than Mrs. Bennis: The abuser of _her_ property, Mr. Bennis, was in fact the co-owner of that property, and it is doubtful that Mrs. Bennis COULD have denied to Mr. Bennis, practically or legally, the opportunity to abuse that property. On the other hand, the operator of an anonymous encrypted remailer is, in effect, "giving out the keys" to that remailer (giving authorization to use it) to anyone at any time, with no checking or other specific authorization, to people who have no legal ownership in that remailer. In fact, the system is (at least arguably) helping to cover up after those abuses. If those self-selected people commit crimes using it, who else is responsible? Question: If the Supreme Court is willing to take away Mrs. Bennis' interest in that car under THOSE circumstances, do you really believe that it WOULD REFUSE to allow a prosecutor to decide that the operator of an abused remailer should be prosecuted (or his property taken by government in a forfeiture action)? Frankly, I don't know how rude I must be before reality sinks in to your brains: If you people continue to insist that this Leahy bill won't be abused, you truly do need to wake up before you end up screwing the rest of us "out here." Your foolish endorsements of this Leahy bill play directly into the hands of those who want to ban the EFFECTIVE use of encryption. Go ahead, endorse the bill CONDITIONALLY on the removal of that offending section. But you should make it quite clear that keeping that section should kill the entire bill. You have been warned. Is it any coincidence that we first heard about this Leahy bill much less than a week after the decision that Mr. Will speaks of? Is it possible Leahy was waiting to see if the SC would allow him to misuse the wording of that proposed law? Having gotten the go-ahead, out pops the new bill. As if on cue. "Do you feel lucky? Well, do you, PUNK?" If there are any of you who have doubts as to the need for the "Assassination Politics" idea, I'd say this S.C. decision should clear them up but fast. Anybody out there believe that the decision would have gone this way if we'd all been able to chip in and fix the problem in a few days? Jim Bell jimbell@pacifier.com p.s. especially to Tim May: If the issue wasn't so serious, and their blind support of this bill so obviously misguided, I wouldn't be rhetorically "slapping them in the face" as I'm trying to do here. 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