Supreme Court on Anonymous Bills

[Nathan Zook <nzook@bga.com>]

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$.02 (fiat) on Talley v California  (recently posted here)
 
It is important to note that this court is expected to significantly
reverse some of the landmark cases from the Warren era.  We should,
therefore, to look to the dissent at least as much as to the court.
 
There can be little question that any attacks on remailers and civilian
strong crypto will face challenges on the basis of Free Speech and Equal
Protection.  The question is: can the state show compelling interest?  I
believe that it can.  Anonymous agents, by their very nature, are immune
from state restraint.  Since our entire legal system centers around state
restraint, I believe that Free Speech and Equal Protection will fall to the
four horsemen.
 
When we consider the decision, we note that one of the main reasons for
voiding the ordinance on its face was that there were other remedies to the
problems that the ordinance claimed to address.  No such other remedies
will exist in our case, that being part of the point of our systems.
Considering the dissent, we see even more room, with the question of Equal
Protection might not be extended on the basis that only electronic
communications were hampered.
 
There is the general question of political speech.  Unfortunately, there is
little anonymous _US_ political speech.  Furthermore, sedition is a crime,
and if the Founding Fathers printed the same things against our government
that they did against England (they could do more), they would face a
number of criminal charges.
 
 
I believe, therefore, that both the court and the dissent bode poorly for
anonymous encrypted mail.
 
 
But these are not the only arguments we have.  We have the questions of
Enforcablity, Distinguishability, Privacy, and the Right to Bear Arms.
One may argue with some force that it may be impossible to determine if a
person is sending and receiving information (and requests for information)
directly, or if they are acting as an anonymizing agent.  One may argue
with great force this difficulty, combined with the nature of the InterNet,
would make general enforcement impossible--leading to the same type of
failure as the Prohibition.  One may argue forcably that the tools
necessary to allow anymous encrypted traffic are the tools necessary to
preserve the barest elements of privacy.  Finally, since strong crypto has
been ITAR limited, one may argue that the tools required are militia-type
weapons, and as such, protected Arms.
 
 
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Key ID: 14712B4D 1994/12/26 Nathan H. Zook <nzook@bga.com>
Key fingerprint =  44 B3 D8 66 3D 55 1E 2E  F8 92 22 A6 33 8C DE 24 
 
 
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