"Nightmare on Crypto Street, Part 1"

[Peter Hendrickson]

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 at netcom.com