Leahy's guillotine.

[jim bell <jimbell@pacifier.com>]

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To:  All


Recent Senate crypto bill
 Mr. LEAHY (for himself, Mr. BURNS, and MRS. MURRAY) introduced the
  following bill; which was read twice and referred to the Committee

[stuff deleted]

2804. Unlawful use of encryption to obstruct justice

  Whoever willfully endeavors by means of encryption to obstruct,
   impede, or prevent the communication of information in furtherance
   to a felony which may be prosecuted in a court of the United States,
   to an investigative or law enforcement officer shall...


I think we may reasonably assume that this section was very carefully 
written, and thus it may contain meanings (or avoid containing meanings) 
that only a careful reading will disclose.  

Contrary to some other sloppy  interpretations that I've seen here recently 
from organizations that ought to know better, I see nothing in this section 
that limits the prosecution on this law to people who are actually 
participating in a crime.  This distinction is vital.   While the sentence 
is not diagrammed, it appears to be the INFORMATION which is in "furtherance 
to a felony," not the "obstructing" of that communication.  The implication 
is that it is not necessary that a person know the exact information 
involved or be able to decrypt it; he needs only be deliberately using 
encryption to prevent the knowledge of what the information is about, or its 
routing.  (As in an encrypted anonymous remailer, for instance.) 

Moreover, the errors among the organizations that are now apparently 
declaring their general support for this amendment are apparently based on a 
false view of the effects of this section.  

Aside from this, it isn't clear what is meant by the phrase, "obstruct, 
impede, or prevent the communication of information in furtherance to a 
felony."    An obvious problem is this:  How will they know if the use of 
encryption actually had that effect?  If it was UNsuccessful, then obviously 
that encryption did not prevent the government from obtaining information.  
If it was SUCCESSFUL, then how is the government to know that the 
communication in question was "in furtherance to a felony"?  Even if they 
can prove the felony by other means, how can they show that the 
communication actually had anything to do with the crime?

Another problem:  Encryption, per se, does not "prevent the communication of 
information."  What it does, of course, is to prevent the UNDERSTANDING of 
that information.  Do the writers of this bill intend to use this law to 
punish the LATTER effect, rather than the former? 

Further, how is the person to be charged to know if his use of encryption 
had the effect of "obstruct[ing], imped[ing], or prevent[ing] the 
communication of that information?  If he encrypts a file to his hard disk, 
and he doesn't intentionally send the file to the cops, how is he supposed 
to anticipate that the use of encryption had this effect?  As far as HE 
knows, it was simply his decision to not send the file to the cops; he can't 
be expected to know that they'll show up the next morning with a search 
warrant and take his computer, can he?  Would his refusal to provide the 
decrypt key constitute a violation of this section?


Or, if he sends that file to another person, and the cops happen to be 
(secretly) listening in, how is he to know?  Does their inability to decrypt 
that information constitute a violation of this section?  After all, the 
cops did indeed get the encrypted file; they simply don't know what to do 
with it!  They are already "impeded" in UNDERSTANDING that file; a broad 
interpretation of this law would make the person who is wiretapped, as well 
as the person to/from whom the file is send, guilty of this crime.


I'll be blunt, because it's what I do best:  Anybody who reads this section 
of the bill and is NOT worried about its myriad possible interpretations is 
a fool or worse.  I'd welcome a lawyer's interpretation of this law, but I 
suspect he'd be just as worried as I am:  This section is a disaster waiting 
to happen; it is genuinely a Pandora's box that is just waiting to be opened 
by some sleazy prosecutor.

Further, any organization with even a shred of credibility that does not 
condition its support for this bill on the complete removal of this section 
is doing the rest of us an extreme disservice:  It is trading on and risking
its 
reputation, because many of them are issuing opinions of this section of the 
bill with assurances that it will only be used against "guilty" people, when 
there is simply no way to know if this is going to be true.


Wake up, people.  These days, the only difference between a limousine and a 
tumbrel is the destination...

Jim Bell
jimbell@pacifier.com

Klaatu Burada Nikto








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