"Regulation of Commerce" and the Crypto Issue

[tcmay@got.net (Timothy C. May)]

It seems to me that in recent years nearly any type of sweeping legislation
is justifed, constitutionally, by the clause in the U.S. Constitution which
says Congress shall have the power to regulate commerce. (More precisely,
the clause says: "To regulate commerce with foreign nations, and among the
several states, and with the Indian tribes;" This is usually interpreted to
mean _interstate_ commerce, and not sales/commerce/etc. that do not
centrally involved more than one state....obviously nearly all things sold
in one state are sold in other states, so there is lattitude for applying
the commerce clause, albeit wrongly.)

Today's news is the sweeping new restrictions on tobacco and cigarettes,
including restriction on advertising and even on the placement of tobacco
and cigarette logos and names on sports jerseys and shirts. (The
much-publicized press event is not for another hour, as I write, so I don't
know all the details. I'll be watching.)

Note that similar restrictions on alchohol advertising were recently struck
down by the Supreme Court as being unconstitutional infringements on free
speech. Many expect the same outcome with these latest proposed
restrictions. (The issue of advertisements of hard liquor, cigarettes,
condoms, and other "unhealthful" [sic] products on television and radio is
of course complicated by the role of the Federal Communications Commission
and by "gentlemen's agreements" not to carry advertisements for some
products.)

Personally, I have never smoked, nor chewed, nor mainlined nicotine.
Personally, I dislike cigarette smoke. But this is all _personally_.

If a restaurant, bookstore, airline, bar, antique store, gym, or whatever
wishes to allow smoking (or not), this is there choice. As many of us see
things, it is not for the government to take a kind of "poll" of what
people like and dislike and then to impose rules on property owners as to
what smoking or nonsmoking policies they may set.

Likewise, if I want to silk-screen a "Joe Camel" image, or a "Bud Frogs"
image, on a t-shirt, this is between me and the putative owner of these
images. Free speech and all. Or, to remove any confusion with the issue of
owned logos, to silk-screen a fictitious cigarette brand on a shirt and
then wear it, or sell it. It seems likely that individual wearers of such
shirts will not be busted (think of how many already exist, and there is no
plan for confiscating them), but that the burden will be placed, as it is
so often conveniently placed, on the shirt makers.

The catch-all for these laws seems to be the "regulate commerce" language
in the Constitution. Cigarettes are sold in multiple states, the logic
goes, so the commerce clause gives the government the power/authority to
regulate it.

(Well, Steven King novels are sold in all 50 states, too. Does this
"regulate commerce" clause give the government the power/authority to
regulate what King puts in his novels? Or to ban advertising for Steven
King novels? Or to require that stores only sell such novels to adults?)

This language is already being cited for some as a justification for
regulating encryption (hey, some businesses use it!), digital signatures
(ditto), and other forms of crypto.

In fact, since nearly everything involves "commerce" in some way, whether
interstate or not, the "regulate commerce" clause can presumably be used as
a jusitification for interfering in all sorts of areas.

The several legal experts out there on this list can clarify any errors of
interpretation I have made. I certainly know that the commerce clause
cannot be used to suppress certain kinds of speech, though the boundaries
of where it may be applied seem unclear.

I do expect it to be used for crypto, though, and this might even be upheld
by the Supremes, especially in any areas directly involving "digital
commerce."

We should watch for this, and think about ways to deflect or derail such
interpretations.

--Tim May

We got computers, we're tapping phone lines, I know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Licensed Ontologist         | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."