Re: Notes from the field

[Mike Godwin <mnemonic@eff.org>]

Paul Ferguson writes:

> I recently became aware of an article that you wrote entitled,
> "Notes on Cryptography, Diigital Telephony, and the Bill of
> Rights", which was included in a recent CuD (5.32, Sun May 2,
> 1993). It appeared to be a message you had originally posted to
> the austin.eff newsgroup.
  
I don't recall posting it to that newsgroup, but it doesn't surprise me
that it appeared there. I have strong connections with Austin and with
EFF-Austin.

> Maybe it's just that time of the day or perhaps I just need for you
> to clarify this a bit more -- How does the ECPA offer protection, as
> it is cuurrently written, against warranted search and seizure with
> regards to technologically advanced systems (such as would crypto be
> considered)?

ECPA doesn't mention encryption. It does, however, penalize unauthorized
disclosure of communications. Whether "disclosure" occurs when a
communication is seized, or when it's decrypted, is an open question.

>      "I.  As my notes here suggest, these initiatives may be, in their
> essence, inconsistent with Constitutional guarantees of expression,
> association, and privacy."
>  
> (End Quote)
>  
> You are saying, in effect, that it is your opinion that these
> initiatives may be unconstitutional?

Yes.

> If so, what course of action
> can be suggested, short of a class action lawsuit against an LEA
> after-the-fact?
  
Lawsuits are almost inherently reactive. The best thing is to lobby
Congress for guarantees of the right to encrypt. State legislatures may
also be a useful target.

> By the way, the article was excellent and since I have not seen it
> posted here in cypherpunks, I'd like your permission to repost it.

You have permission to repost it anywhere. I believe it appeared already
in cypherpunks, though. Maybe some people want to see it again.


--Mike