Moral Crypto

[Declan McCullagh]

At 12:28 PM 9/4/01 -0700, Tim May wrote:
>Either one runs seriously afoul of the First Amendment.
>
>Remailers are publishers. Publishers cannot be "licensed," nor can they
>simply be closed down.

Let me play Devil's Advocate a bit and try to challenge this conventional 
cypherpunk wisdom.

Unlike remailers, publishers exercise editorial discretion over what they 
print or distribute or broadcast. They do this by considering the content 
of the communication and judge, among other things, whether it is timely, 
newsworthy, informative, accurate, complete, relevant, interesting -- in 
other words, whether the content will succeed in the marketplace or not.

A remailer does none of those things. Instead of a person judging articles, 
books, or multimedia clips as worthy of being published, a remailer simply 
forwards. To that end, it is far more like a mechanical device: a conveyor 
belt that moves an item from one place to another, perhaps taking off a 
layer of packaging along the way.

Another analogy (though polluted because of the U.S. Mail regs) might be 
like a Mailboxes Etc.-type service that opens an envelope and forwards the 
extracted contents to you at another address. Even if that service *only* 
used FedEx and UPS (to avoid at least in part the postal regs), what court 
would strike down regulations enacted by legislatures or Congress? Seems to 
me the Supreme Court (wrongly) would say the First Amendment interests are 
limited, and it's a just exercise of the Commerce Clause.

Much would depend on the details, I'd imagine, of such a hypothetical law. 
Is it a flat ban, or (at first) brief identity-escrow periods?

Obviously I'm not trying to argue that Congress *should* enact such a law 
-- I think they should stay the hell away from this area -- but what if 
they do? How about if they try, as someone else suggested, to compel ISPs 
or network providers to be the _de facto_ cops?

I'm not trying to scare off cypherpunk-types from coding or discussing 
these things. If anything, I'd argue that the next few years are the time 
to deploy mixes more widely, and weave them into popular products, so 
restrictions would meet with not just theoretical privacy-themed 
opposition, but lots of peeved users as well. I'm also not saying, to 
repeat my last message, that OECD or G8-wide legal restrictions would put 
remailers out of business, but I suspect such rules would make it much less 
likely they'd be mainstream.

-Declan