Re: Leahy bill nightmare scenario?

["Dan Weinstein" <djw@vplus.com>]

On  8 Mar 96 at 9:24, you wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
> 
> At 06:14 AM 3/8/96 GMT, Dan Weinstein wrote:
> >On Wed, 06 Mar 1996 16:59:36 -0800, you wrote:
> >
> >>At that point, Bob is GUILTY of violation of the Leahy bill,
> >>because his encrypted anonymous remailer:
> >>
> >>1.  Uses encryption to thwart message tracing, and thus the
> >>"criminal investigation."
> >>
> >>2.  Bob has already been informed that his system will be used for
> >>illegal purposes; the cops have the messages to prove he has been
> >>told.  He's GUILTY GUILTY GUILTY, he will definitely lose the
> >>system and possibly whatever residence it runs in, and will
> >>probably have to pay a huge fine to boot.
> >
> >This is not my understanding.  I believe that Bob has to be
> >commiting a felony himself before they can get him under the
> >current phrasing.
> 
> Well, first, the section's phrasing is screwed up.  Whether this is
> the fault of VTW, who posted the text, or the original bill I do not
> know.  

I have yet to see the original bill myself, it is not posted on 
Thomas yet, but I too have ready the VTW version.

> Second, if what they're charging is the hindrance of an
> felony investigation, it isn't clear to me why they would be
> limiting the charging of that "crime" to only those actually who
> have committed a felony. (logic isn't the normal mode of thought for
> a government employee, you realize.)  

I agree with your concerns here, but I find it hard to believe that 
the courts would allow a broader interpretation.
 
>  Third, all they have to do is to "suspect" the person of a felony,
>  and a 
> "felony investigation" starts.  That would presumably make him
> guilty of the Leahy bill's provision, regardless of whether he is
> actually participating in the crime supposedly being investigated.

Here you are dead wrong, the bill specifically states: "in furtherance 
of a felony."  Its like those laws that let them charge someone with 
murder in the first if someone dies while you are commiting another 
felony.  They must prove the original felony before they can get you 
on the murder one.  The real purpose of this provision, as I read it, 
is to give longer sentences to criminals that use crypto.
 
> Fourth, I gave what I considered to be a clear example of the
> hypothetical misuse of an encrypted remailer by the cops, one that
> would arguably make the remailer operator guilty of some
> "reasonable" anti-kiddie-porn statute.  At that point, _he_is_ the
> target of the investigation.  Unless you can show that this kind of
> action by the government is impossible, I consider it to be not
> merely possible but almost certain to occur.

Again, the problem I see with your scenario is that I don't believe 
that the courts will interpret it that way.  My interpretation is that 
if they serve a warrent and I don't decrypt for them and they can 
prove a felony, then I will be subject to the listed punishment.


> Fifth, it isn't clear what amount of knowledge is necessary to
> "trigger" this clause, especially in its current flawed state. 
> Since ISP's and encrypted remailers might know, in general, that
> their systems can and probably are being used for SOME criminal
> activity, even if they can't identify it or the user, or decrypt it,
> etc, a broad interpretation of the resulting law could easily
> de-facto prohibit any business practices (i.e., allowing users to
> use encryption) that prevents full-scale monitoring and/or tracing.

I disagree, it states you must "willfully endeavor" to use the 
encryption as a means of obstructing the investigation.  To me, this 
means that it is the motivation for using the encryption.  If I set 
up an encrypting remailer for the purpose of allowing free exchange 
of ideas, I don't believe I would be liable under this law.  The 
only way I could see a remailer charged under this is if he had solid 
evidence that a specific user was violating the law, and took no 
action.
 
> This is only the beginning of the problems with this section.  If
> you can explain why nothing I've described could possibly occur, I
> welcome a contrary explanation.  

I see some real problems too, but I do not see the problems with this 
provision to be enough to condemn the entire bill.  I would like to 
see this portion of the bill ammended to make it clear that only 
those actually involved in commiting the felony would be held 
responsible. 

 
> But I would also ask this:  Why, exactly, do we need this section? 
> We've already been told that the opponents of this bill will fight
> it tooth-and-nail under its current wording; if that's the case then
> the presence of this section is inadequate to appease their
> unhappiness.  Therefore, we shouldn't include it in the bill at all;
> it does no good.
> 
> Any explanations, Dan?

You are talking about the fringe, this, I think, was added as an 
attempt to bring in those that are in the middle.  That is, Those 
that see the need to prevent the use of encryption as a means of 
obstructing justice, but feel that we should also have a right to 
privacy.  To say that there is no delema here is ridiculous, crime is 
a serious problem that we are already having a terrible time dealing 
with.  I think Leahy realizes that this provision will be about as 
useful as the "use a gun, go to jail" laws, but wants to give those 
in the middle to say that they bill will help prevent crime.
 
> BTW, I'm not the source of those recent anonymous notes on
> Cypherpunks criticizing you for the support of this bill.  As you by
> now have guessed, I'm not at all reticent about standing up and
> being counted and identified.
> 
> Jim Bell
> jimbell@pacifier.com
> 
> Klaatu Burada Nikto

Good movie.

Dan Weinstein
djw@vplus.com
http://www.vplus.com/~djw
PGP public key is available from my Home Page.
All opinions expressed above are mine.

"I understand by 'freedom of Spirit' something quite definite -
the unconditional will to say No, where it is dangerous to say
No.        
           Friedrich Nietzsche