Leahy bill nightmare scenario?

Sat Mar 9 11:56:18 PST 1996

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At 12:19 PM 3/8/96 -0800, Dan Weinstein wrote:

>> Second, if what they're charging is the hindrance of an
>> felony investigation, it isn't clear to me why they would be
>> limiting the charging of that "crime" to only those actually who
>> have committed a felony. (logic isn't the normal mode of thought for
>> a government employee, you realize.)  
>
>I agree with your concerns here, but I find it hard to believe that 
>the courts would allow a broader interpretation.

Unfortunately, what you find "hard to believe" I find easy to believe.  
Remember, if this bill is passes, it doesn't merely affect YOU, it affects 
ME.  So I suggest the burden of proof is on YOU to show that these 
provisions aren't going to be maliciously interpreted by the courts.

>>  Third, all they have to do is to "suspect" the person of a felony,
>>  and a 
>> "felony investigation" starts.  That would presumably make him
>> guilty of the Leahy bill's provision, regardless of whether he is
>> actually participating in the crime supposedly being investigated.
>
>Here you are dead wrong, the bill specifically states: "in furtherance 
>of a felony."  Its like those laws that let them charge someone with 
>murder in the first if someone dies while you are commiting another 
>felony.  They must prove the original felony before they can get you 
>on the murder one.  The real purpose of this provision, as I read it, 
>is to give longer sentences to criminals that use crypto.

I'm not a lawyer, but I assume neither are you.  Please explain the LEGAL 
DEFINTION of "in furtherance of a felony."  If you can't, then you simply 
don't know how far they will go.  And you're depending on the reasonableness 
of the government for the interpretion.

>> Fourth, I gave what I considered to be a clear example of the
>> hypothetical misuse of an encrypted remailer by the cops, one that
>> would arguably make the remailer operator guilty of some
>> "reasonable" anti-kiddie-porn statute.  At that point, _he_is_ the
>> target of the investigation.  Unless you can show that this kind of
>> action by the government is impossible, I consider it to be not
>> merely possible but almost certain to occur.
>
>Again, the problem I see with your scenario is that I don't believe 
>that the courts will interpret it that way. 

What you think is irrelevant.  Most people probably didn't realize what the 
government did in the Amateur Action BBS case was "legal," either.  But they 
did it anyway.

> My interpretation is that 
>if they serve a warrent and I don't decrypt for them and they can 
>prove a felony, then I will be subject to the listed punishment.

Are you assuming that you have the key?  Remember, if you run an encrypted 
anonymous remailer, and assuming you do it honestly, you won't be keeping 
records as to the source of the note.

Thus, if they "serve a warrant" and you CAN'T decrypt the message (or tell 
them where it came from) then why aren't you already guilty?  Remember, the 
wording of the proposed law doesn't require that you have full knowledge of 
the crime involved, merely that you act "in furtherance" of it...   If you 
don't possess the key, but you explicitly ran your remailer so that you 
never it, just so you couldn't relinquish it, you have structured your 
operation too thwart any investigations.  You are ALREADY guilty.  This may 
not sound reasonable, but the government no longer (if it ever did) 
considers "reasonableness" to be an impediment to their actions.

>> Fifth, it isn't clear what amount of knowledge is necessary to
>> "trigger" this clause, especially in its current flawed state. 
>> Since ISP's and encrypted remailers might know, in general, that
>> their systems can and probably are being used for SOME criminal
>> activity, even if they can't identify it or the user, or decrypt it,
>> etc, a broad interpretation of the resulting law could easily
>> de-facto prohibit any business practices (i.e., allowing users to
>> use encryption) that prevents full-scale monitoring and/or tracing.
>
>I disagree, it states you must "willfully endeavor" to use the 
>encryption as a means of obstructing the investigation.  To me, this 
>means that it is the motivation for using the encryption. 

Question:  What, exactly, is the motivation of a person running an anonymous 
remailer?  His motivation is clear:  To allow people to send anonymously 
untraceable messages.  Assuming he's of ordinary levels of intelligence or 
beyond, he is aware that somebody may some day use his system for illegal 
purposes.  You're going to have to explain why a court _CAN'T_ interpret 
this as being in violation of the law.

> If I set 
>up an encrypting remailer for the purpose of allowing free exchange 
>of ideas, I don't believe I would be liable under this law.

Your optimism is touching.  It is also vastly misguided.

>The 
>only way I could see a remailer charged under this is if he had solid 
>evidence that a specific user was violating the law, and took no 
>action.

Gee, I wish you were right, but my experience with government thugs says 
that they will do anything they think they can get away with.

>> This is only the beginning of the problems with this section.  If
>> you can explain why nothing I've described could possibly occur, I
>> welcome a contrary explanation.  
>
>I see some real problems too, but I do not see the problems with this 
>provision to be enough to condemn the entire bill.

I don't "condemn the entire bill."  I would, however, reject the entire bill 
if that provision remains.  And morever, if we make a serious attempt to 
have it removed, the more they resist removing it the more we should insist 
it go.

>I would like to 
>see this portion of the bill ammended to make it clear that only 
>those actually involved in commiting the felony would be held 
>responsible. 

There would still be a problem.  What's the definition of "actually involved 
in committing the felony"?  Are you aware, for example, that manufacturers 
of small plastic screw-top vials have been prosecuted and convicted simply 
because their vials could be used to hold small quantities of drugs such as 
cocaine and crack?  This was a case from a few years back, BTW.  I wish I 
could remember the cite.

If you're not aware of these things, WAKE UP!  Your optimism disgusts me, 
because it is entirely unrealistic and based on a rose-colored-glasses view 
of the government.

>> But I would also ask this:  Why, exactly, do we need this section? 
>> We've already been told that the opponents of this bill will fight
>> it tooth-and-nail under its current wording; if that's the case then
>> the presence of this section is inadequate to appease their
>> unhappiness.  Therefore, we shouldn't include it in the bill at all;
>> it does no good.
>> 
>> Any explanations, Dan?
>
>You are talking about the fringe, this, I think, was added as an 
>attempt to bring in those that are in the middle. 

Why would "those that are in the middle" object to a bill which is little 
more than a re-statement of rights we already believe we have?!?

> That is, Those 
>that see the need to prevent the use of encryption as a means of 
>obstructing justice, but feel that we should also have a right to 
>privacy.

There is no viable middle ground here.  Any tool can be abused.

>  To say that there is no delema here is ridiculous, crime is 
>a serious problem that we are already having a terrible time dealing 
>with. 

On the contrary, my opinion is "The _government_ is a serious problem that 
we are already having a terrible time dealing with."   Fortunately, I've 
found a solution, and the government is trying as hard as it can to prevent 
it (and "crypto-anarchy" in general) from taking root.

> I think Leahy realizes that this provision will be about as 
>useful as the "use a gun, go to jail" laws, but wants to give those 
>in the middle to say that they bill will help prevent crime.

Ha ha!  That's rich!  There is no reason that a "pro-encryption" bill has to 
contain any general "anti-crime" clauses.  The average person is afraid of
burglars, 
muggers, murderers, rapists, car thieves.  When is the last time the average 
person was the victim of a crime whose investigation could be "thwarted" by 
the use of encryption?  If you can't think of an example, you've just proved 
my point:  This provision is entirely irrelevant to the average citizen (at 
least in a "positive" way) and can't be considered a "win" for him. 

>> Jim Bell
>> jimbell at pacifier.com
>> 
>> Klaatu Burada Nikto
>
>Good movie.

I'm working on the real-life sequel.