Impact of Free Strong Crypto (Essay of sorts)

[Black Unicorn <unicorn@access.digex.net>]

If the below is cut off by your mailer or mine, please drop me a note and 
I shall send you a complete copy.

-uni- (Dark)


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Political Ramifications of Free Encryption Technology.


To me the Cypherpunks represent the drive to free technology from a 
regimented, collectivist, and centralized regulatory structure.  So deep 
does this inclination seem to run that even liberal programs that might 
extend the reach of high technology particularly communications and data 
storage or processing technologies, through social reform are looked at 
almost universally with distaste.  There is almost a disgust at the mere 
notion of Federal Government involvement in the development and 
distribution of technology.  (Reaction to Al Gore's programs are a 
demonstration of this attitude).  Some on the list would certainly 
disagree, feeling that government should take responsibility to promise 
equal access in the face of the amazing disparity selectively distributed 
technology would create, but I feel these are mere philosophical 
differences in methodology, and not major conflicts in goals.  In some ways 
this debate is so powerful and threatens to fill so much bandwidth that 
some Cypherpunks seem to resist any political content on the list.  
(Witness the many clashes about what the Cypherpunks list is really for, 
and whether political topics even have a place therein).  A treatment of 
the merits of Government involvement in distributional aspects of 
technology, or the level of regulation required or desired goes beyond the 
scope of this work.  I wish instead to focus on the likely institutional 
reaction to a Cypherpunk victory.  This necessarily requires a good deal of 
assumption on my part.  Probably also some assumptions that are likely to 
make as many people happy as upset.  I think the underlying analysis below 
is sound whatever the political persuasions of the reader.  That being said 
let it be known that I consider the following as a "Cypherpunk victory."

1.  Complete freedom of technology, particularly encryption technology, 
regulated only by market forces.  This implies the lack of import/export 
restrictions, and a complete absence of projects designed to limit 
technology, or to standardize it for nefarious ends like Clipper.

2.  A wide market of hardware and software products allowing, among other 
things, strong, transparent cryptography for voice, data, fax, cellular, 
and video communications.

3.  Active and profuse vendors of related applications of the above 
technologies, including among others, digital banking, and anonymous mail 
(in my use including video, voice, data, and true digital cash).

I think these are all possible (however likely or unlikely) within the next 
five years.

Many Cypherpunks will necessarily draw a "fall of modern government" effect 
from the above conditions.  Others will see the existence of a regulatory 
entity much lessened in importance and control than today.  Still others 
will predict little change at all.  Whatever your position, I think it is 
clear that government, like any entity, will seek to survive despite the 
above conditions.  I assume in my construct that the Federal Government has 
fought these points on all fronts (a safe bet in my view) but lost (a less 
likely scenario to me in the next five years).  Given these facts, how is 
government likely to adjust?  Surely not without a fight to survive even in 
the face of what many see as impending doom for revenue collection and law 
enforcement.

I have often commented that Cypherpunks see things about 6 months to 2 
years before the popular culture begins to catch the scents.  It is 
surprising to me then that the list (as far as I know) has been so stuck in 
the present with regard to the likely reaction to long term Cypherpunk 
goals.  Most political discussions deal either with the present Federal 
Government threat, (Clipper, Digitel, Information Superhighway) or with the 
long term promise of Cypherpunk technology, but not the future Federal 
Government response to said technology.  Partly I think this is 
attributable to the perception that the Federal Government is as much 
behind the times as popular culture.  Technically this is probably true on 
the whole.  (Dorthy Denning being short sighted enough to insist that law 
enforcement needs wiretap ability because they have always had such an 
ability.  Ms. Denning's similarly dense arguments based on statistics to 
the effect that since law enforcement has used wiretaps so often, they must 
be indispensable and thus must be preserved.  What Ms. Denning never 
mentions, either accidentally or with intent, are the alternatives).  But 
it is equally true that there is, or there appears to be, some foresight on 
the policy level as to the implications of the new technology on the long 
term.  (The Clipper proposal is either a entirely absent minded program 
which can never work because the goal really is a non-mandatory non-
regulatory standard creation, or it is an adept foot in the door coup.  A 
tour de force program in conjunction with Digitel, Information Highway, and 
NIST designed to preempt technology.)  So what if the Cypherpunks win?


How will the complete inability of law enforcement (Federal or Local) to 
conduct wiretaps impact collection?  Those who think that law enforcement 
will just have to go away might want to reconsider.  Instead I think that 
law enforcement will simply become much more intrusive as a response to the 
unavailability of easy interception via wiretapping.

Recently on the list it was pointed out that few if any serious ciphers 
have been cracked without a Human Intelligence component.  Indeed many of 
the later successes against the Enigma machines could be found in German 
operator laziness rather than pure analytical prowess.  One Signals 
Intelligence type mentioned that his job was made much easier by the 
propensity of the German communication officers he was responsible for to 
use obscenities for their Enigma keys.

Currently wiretaps are so popular not because they are indispensable but 
because a series of court decisions have made them the simplest, and 
cheapest method of Criminal Intelligence.  Cases like _Smith v. Maryland_, 
442 U.S. 735 (1979) have placed a fairly low burden on the law enforcement 
officials seeking to intercept telephone conversations, and almost no 
burden on those who wish to intercept call setup information.  It is no 
surprise then that they have become so frequently used in criminal 
investigation and are so often cited as well as jealously defended as 
critical.

Given the national anti-crime sentiment (even far left democrats seem to 
have given up on rehabilitation, and any astute politician who aspires to 
another term is terrified of being portrayed as soft on crime), the 
position that secure communications will solve the lack of oversight and 
intrusiveness of law enforcement conveniently ignores the constitutional 
"adjustments" that were made in the face of the national neurosis with the 
war on drugs.  Instead Federal and Local law enforcement will begin to rely 
on Human Intelligence as well as more intrusive site collection to work 
around the technologically intensive and prohibitively expensive Signals 
Intelligence in the new era.  Courts, tired of dismissing hundreds of 
otherwise legitimate looking cases, are likely to judicially erode the 
constitutional protections protecting citizens from search and seizure 
particularly with reference to an increased law enforcement reliance on 
more intrusive room surveillance equipment.  In the context of the Fourth 
Amendment's structure this becomes a particularly difficult problem.  The 
Exclusionary Rule provides for the rejection of evidence collected in 
violation of the Fourth Amendment (there is no effective civil remedy) but 
as many commentators have pointed out this is a particularly difficult 
thing for a judge to do.  Exclusionary Rule motions come in the context of 
a convicted criminal, who most often was fairly obviously guilty, but who 
would be released without the evidence in question.  Most of today's 
Exclusionary Rule law comes from drug cases as it became increasingly 
difficult in the late 1970's and early 1980's to overturn convictions where 
two kilograms of cocaine was discovered by a questionable search.  Will not 
this same judicial activism be used to expand law enforcement's freedom to 
use room bugs and other intrusive methodology in the face of the argument 
that wiretapping is impossible?  Similarly is it likely that law 
enforcement will begin to rely on Human Intelligence to a much greater 
extent.  Targeted political organizations will be infiltrated with a much 
greater degree of aggressiveness, perhaps even surpassing levels of the 
1960's.  Frustration in law enforcement inability to penetrate the more 
advanced criminal circles will probably result in very creative 
interpretation of the rules, if not an outright disregard for them, to 
secure convictions.

More alarming perhaps are the ramifications for banking transactions.  In 
the absence of an ability to monitor transactions electronically Human 
Intelligence will be forced to fill in the gaps, creating a great demand 
for informants within the banking and financial industries.  The SEC simply 
will be unable to function as it does today without electronic monitoring 
of transactions.  Instead brokerage firms, high profile investors and 
financial institutions are more likely to be attacked with Human 
Intelligence and informants, perhaps even outright theft of records.  The 
implications for even the moderate level investor are ominous.

Given the flexibility of constitutional interpretation demonstrated by the 
New Deal legislation, is it any mystery that the new law enforcement 
methodology will be supported by the courts, especially in the face of 
complete law enforcement breakdown?

The only real practical legal recourse would be a clarification to the 
courts by the legislature.  However, if the current anti-crime atmosphere 
endures it is highly unlikely that any legislator will go on record as a 
obstacle to law enforcement by checking the courts back.

The Cypherpunks must ask themselves how to address these issues, and 
recognize the potential political impact of high technology and the losing 
law enforcement battle to keep up.  Would a Cypherpunk victory merely be 
bypassed by a clever end run?  Is this a case of "Even when you win you 
lose"?


- -uni- (Dark)


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