Criminalizing crypto criticism

[Declan McCullagh]

On Thu, Jul 26, 2001 at 10:53:02PM -0400, David Jablon wrote:
> With these great new laws, there is no longer any risk of being legally
> criticised for using even the most glaringly flawed cryptography -- just use it
> for Copy Protection, and TADA!  Negative criticism magically disappears.
> Almost by definition.
> 
> Flaws can only be exposed by those who won't show their work,
> or from anonymous sources, who nobody will trust without confirmation [...]
[...]
> We seem to be entering the twilight zone -- the end of an exciting,
> but brief era -- of public cryptography.

The DMCA may be bad, but it's not *that* bad. It contains a broad
prohibition against circumvention ("No person shall circumvent a
technological measure that effectively controls access") and then has
a bunch of exceptions.

One of those -- and you can thank groups like ACM for this, if my
legislative memory is correct -- explicitly permits encryption
research. You can argue fairly persuasively that it's not broad
enough, and certainly 2600 found in the DeCSS case that the judge
wasn't convinced by their arguments, but at least it's a shield of
sorts. See below.

-Declan

PS: Some background on Sklyarov case:
http://www.politechbot.com/cgi-bin/politech.cgi?name=sklyarov

PPS: Note you only get the exemption if you make "a good faith effort
to obtain authorization before the circumvention." Gotta love
Congress, eh?



http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR:

`(g) ENCRYPTION RESEARCH-

`(1) DEFINITIONS- For purposes of this subsection--

`(A) the term `encryption research' means activities necessary to
identify and analyze flaws and vulnerabilities of encryption
technologies applied to copyrighted works, if these activities are
conducted to advance the state of knowledge in the field of encryption
technology or to assist in the development of encryption products; and

`(B) the term `encryption technology' means the scrambling and
descrambling of information using mathematical formulas or algorithms.

`(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH- Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of that
subsection for a person to circumvent a technological measure as
applied to a copy, phonorecord, performance, or display of a published
work in the course of an act of good faith encryption research if--

`(A) the person lawfully obtained the encrypted copy, phonorecord,
performance, or display of the published work;

`(B) such act is necessary to conduct such encryption research;

`(C) the person made a good faith effort to obtain authorization
before the circumvention; and

`(D) such act does not constitute infringement under this title or a
violation of applicable law other than this section, including section
1030 of title 18 and those provisions of title 18 amended by the
Computer Fraud and Abuse Act of 1986.

`(3) FACTORS IN DETERMINING EXEMPTION- In determining whether a person
qualifies for the exemption under paragraph (2), the factors to be
considered shall include--

`(A) whether the information derived from the encryption research was
disseminated, and if so, whether it was disseminated in a manner
reasonably calculated to advance the state of knowledge or development
of encryption technology, versus whether it was disseminated in a
manner that facilitates infringement under this title or a violation
of applicable law other than this section, including a violation of
privacy or breach of security;

`(B) whether the person is engaged in a legitimate course of study, is
employed, or is appropriately trained or experienced, in the field of
encryption technology; and

`(C) whether the person provides the copyright owner of the work to
which the technological measure is applied with notice of the findings
and documentation of the research, and the time when such notice is
provided.

`(4) USE OF TECHNOLOGICAL MEANS FOR RESEARCH ACTIVITIES-
Notwithstanding the provisions of subsection (a)(2), it is not a
violation of that subsection for a person to--

`(A) develop and employ technological means to circumvent a
technological measure for the sole purpose of that person performing
the acts of good faith encryption research described in paragraph (2);
and

`(B) provide the technological means to another person with whom he or
she is working collaboratively for the purpose of conducting the acts
of good faith encryption research described in paragraph (2) or for
the purpose of having that other person verify his or her acts of good
faith encryption research described in paragraph (2).