Re: Leahy bill nightmare scenario?

[jim bell <jimbell@pacifier.com>]

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At 06:23 PM 3/9/96 -0800, Dan Weinstein wrote:
>On  9 Mar 96 at 9:26, you wrote:
>
>> >I agree with your concerns here, but I find it hard to believe that
>> > the courts would allow a broader interpretation.
>> 
>> Unfortunately, what you find "hard to believe" I find easy to
>> believe.  Remember, if this bill is passes, it doesn't merely affect
>> YOU, it affects ME.  So I suggest the burden of proof is on YOU to
>> show that these provisions aren't going to be maliciously
>> interpreted by the courts.
>
>Burden of proof?  Sorry, I do not have to justify my views to anyone. 
> I am trying to have a reasonable discussion of this issue, thus, the 
>"burden of proof" lies equal on each of us. 

Well, you're arguing in apparent favor of a segment of a bill which CHANGES 
current law.  Moreover, you're suggesting that we should trust the 
government's biased future interpretation of the ambiguous wording.  Since 
that clause doesn't really have to be there for the rest of the bill to 
stand by itself, I'd say it's fairly obvious that the burden of proof is on 
you.  I'm arguing, on the other hand, that there is danger in ambiguity, and 
there is!

>> >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.
>> 
>> I'm not a lawyer, but I assume neither are you.  Please explain the
>> LEGAL DEFINTION of "in furtherance of a felony."  If you can't, then
>> you simply don't know how far they will go.  And you're depending on
>> the reasonableness of the government for the interpretion.
>
>True, I am not a lawyer.  I would like to hear from one of the 
>lawyers on the list for a more deffinitively.  Since you also admit 
>you are not a lawyer, I do not accept your opinion as superior to 
>mine.

Please note my more recent commentary to "all" where I point out that it is 
the INFORMATION which is to be "in furtherance of a felony," not the action 
of the person doing the encryption.  Like I pointed out, the sentence is not 
diagrammed, but I think it's fair to conclude that knowledge of the details 
of the information is unnecessary to be guilty under this section of the 
bill, merely the fact that you're using encryption to hide SOMETHING WHICH 
_MIGHT_ BE INFORMATION "IN FURTHERANCE OF A FELONY."

We're getting into pretty dangerous territory, I think.

>  I was pointing it out as something that I believed you had 
>missed.  I find it hard to believe that anyone can further a felony 
>when their is no felony.

They used to prosecute conspiracies when there was no crime!  Did you know 
that?  In the late 1800's, it was not illegal for a worker to endeavour to 
have his salary increased, but union membership ("a conspiracy") was ILLEGAL!
In other words, a conspiracy to do a legal thing was illegal.

>  In addition, this is VTW's interpretation 
>based on the analysis that they have posted to their home page.  I 
>would presume that they were using lawyers to analyze the bill.

I seriously doubt it.  I haven't gotten a response from Mr. Safdar, yet, 
which I consider to be suspicious.  If he's confident of his position he'll 
back up his interpretation with whatever legal advice he used to decide on 
his original support.  My guess is that he simply read the bill in a sloppy 
fashion, jumped to the conclusion that the writers of the bill hoped we'd 
do, and wrote up his support without a lawyer's advice.


>> >> 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. 
>> 
>> What you think is irrelevant.  Most people probably didn't realize
>> what the government did in the Amateur Action BBS case was "legal,"
>> either.  But they did it anyway.
>
>Yes, this case was certainly a travesty.  The thing about it was that 
>it violated the law.  Their actions took place in California, but 
>they were tried in Tennessee.  This is a violation of U.S. law.  
>Again, this is my non-professional opinion, but I have heard several 
>professionals proclaim that the governments actions seriously 
>violated its own laws.

Yes, it was a "travesty."  But it was a travesty because the people involved 
simply didn't care whether what they did looked kosher to the average 
BBS/net user, and figured the average citizen wouldn't care.


>If your point is that the government does 
>not obey its own laws, then all I can say is that if that is how you 
>feel then why oppose the bill?  Won't they end up doing what they 
>want anyway?

Not if I have my way about it.  I assume you are aware that I'm the author 
and primary proponent of my "Assassination Politics" essay.  I consider it 
essentially inevitable.  Moreover, with the exception of a few killings done 
by perfectly anonymous people, it should be entirely legal by current 
black-letter law.  This should eventually eliminate the ability of the 
government to cause the kind of outrages we've all heard about,  such as the 
SJ Games case, Amateur Action case, and of course Waco and Ruby Ridge, along 
with many others.  Once adopted, any government employee who pisses off even 
a tiny fraction of the population would either resign or die, or both, and 
you'd never have to wonder whether a government-hired murderer would get 
away with his crimes.

You need to understand that long before I started publicizing this idea, I 
was fully aware that the government would have to do something to prevent 
this from happening:  They'd have to write new laws to make crimes out of 
things that were not formerly crimes.  I believe that they are trying to do 
exactly this with this new law:  What they want to do is to be able to 
prosecute people who are doing nothing more than collecting "bets" and 
paying off "winners" in a "lottery" that government employees can only lose, 
fatally.

In short, the government is trying to head off "crypto-anarchy," which I 
guess is Tim May's trademark.  I suggest that we don't allow them to; it 
will merely make the government's eventual end even bloodier.


>> Are you assuming that you have the key?  Remember, if you run an
>> encrypted anonymous remailer, and assuming you do it honestly, you
>> won't be keeping records as to the source of the note.
>>
>> Thus, if they "serve a warrant" and you CAN'T decrypt the message
>> (or tell them where it came from) then why aren't you already
>> guilty?  Remember, the wording of the proposed law doesn't require
>> that you have full knowledge of the crime involved, merely that you
>> act "in furtherance" of it...   If you don't possess the key, but
>> you explicitly ran your remailer so that you never it, just so you
>> couldn't relinquish it, you have structured your operation too
>> thwart any investigations.  You are ALREADY guilty.  This may not
>> sound reasonable, but the government no longer (if it ever did)
>> considers "reasonableness" to be an impediment to their actions.
>>
>
>I don't but this.  If I am a reporter if I receive an anonymous tip, 
>a court could order me to tell who my source was, but I couldn't and 
>they couldn't do anything about it unless they could prove that I 
>knew who the source was.  If I knowingly aranged for the source not 
>to reveal himself to me, could I them be charged with obstruction of 
>justice or contempt of court?  Again it is my non-profesional 
>opinion, but I really doubt this. Comment from a lawyer would be 
>appreciated.

You shouldn't use the example of a "reporter."  See, due to the 1st 
amendment (and the fact that news organizations are rich and influential) 
the law tends to defer to the media in situations where it shouldn't.  For 
example, a reporter can usually refuse to give sources for information, but 
ordinary citizens can't refuse to testify against other people in an 
analogous way.  (I'm not saying the reporter should be forced to testify; 
I'm saying the average citizen should NOT be!)   Citing the example of a 
reporter is therefore misleading, because you could be correct about the 
current interpretation in that instance  but not if you tried to apply this 
analogy to the operator of an anonymous remailer.

 
>> >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. 
>> 
>> Question:  What, exactly, is the motivation of a person running an
>> anonymous remailer?  His motivation is clear:  To allow people to
>> send anonymously untraceable messages.  Assuming he's of ordinary
>> levels of intelligence or beyond, he is aware that somebody may some
>> day use his system for illegal purposes.  You're going to have to
>> explain why a court _CAN'T_ interpret this as being in violation of
>> the law.
>> 
>
>If I rent cars, someone might one day use a car rented from me in a 
>robbery.  Does that make my an accessary?  NO.

Again, your example is misleading.  Manfacturers and suppliers of goods and 
services that are rich and have been around a long time have hired lobbyists 
to get politicians to formulate laws that are "friendly" to their particular 
business.  Anonymous remailers, on the other hand, have little budget, none 
for lobbying, and they have no "history" of court cases that back up their 
rights in these matters.  Cite all the cases you want from "smokestack 
America" and it'll get you nowhere:  Juries may sympathize with car rental 
places (who at least do a credit check on their customers, BTW) but there's 
no guaranteee they'll sympathize with a remailer whose "only" function is to 
disguise the source of a message.

 >> > 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.
>> 
>> Your optimism is touching.  It is also vastly misguided.
>
>If you think I am optimistic, you must think just about everyone is 
>an easy dupe. 

Well, so far, a number of organizations seem to have fallen for this bill.  
Most of them are smart enough to be worried about this section, but the 
problem is that they are not aware of how bad the problems are.  They have 
no imagination; they don't try to answer the question, "How can this law be 
abused?"

> If I do not quite reach your level of paranoia, I 
>apologize; I will try to get to where I distrust everyone like you. 
>Or are you just plotting to make me paranoid?

If you've already admitted that the Amateur Action BBS case was a 
"travesty," then how in the world can you call me "paranoid"?    As the 
saying goes, "You're not paranoid if the ARE out to get you!"


>> >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.
>> 
>> Gee, I wish you were right, but my experience with government thugs
>> says that they will do anything they think they can get away with.
>> 
>
>Their is certainly A LOT of that with in our government, but to claim 
>everyone in the government is a jack-booted thug is just too far over 
>the top for me. (Yes, yes I realize you think this is niave.)

It doesn't take "all" of them to be thugs for a bill such as this to be 
abused.  The scum rises to the top, or floats to the bottom.
 

>> >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 don't "condemn the entire bill."  I would, however, reject the
>> entire bill if that provision remains.  And morever, if we make a
>> serious attempt to have it removed, the more they resist removing it
>> the more we should insist it go.
>
>I don't want it removed, I think it is an important bone to through 
>to those in the middle.

In the "middle" of what?  The public?  Or a few self-interested politicians? 
 If it's the latter, I'd say "fuck 'em!"  If the only way they'll pass the 
rest of the bill is to have that portion of the bill there, then they must 
think that portion of the bill is REAL IMPORTANT!   And if they think that, 
you need to ask yourself WHY is it so important to them?

Sorry, but _I_ know why it's so important to them; the power and even their 
very lives are on the line.


>  I would like the phrasing tightened up so 
>that it could only be used against those that deserve it.

Who "deserves it"?  And why wouldn't you be satisfied with convicting them
of whatever crime they are presumably already guilty of?!?

>> There would still be a problem.  What's the definition of "actually
>> involved in committing the felony"?  Are you aware, for example,
>> that manufacturers of small plastic screw-top vials have been
>> prosecuted and convicted simply because their vials could be used to
>> hold small quantities of drugs such as cocaine and crack?  This was
>> a case from a few years back, BTW.  I wish I could remember the
>> cite.
>
>I was not proposing that exact language, I am not a lawyer and don't 
>imagine I could come up with the bullet-proof wording that is 
>required.
> 
>> If you're not aware of these things, WAKE UP!  Your optimism
>> disgusts me, because it is entirely unrealistic and based on a
>> rose-colored-glasses view of the government.
>
>I am not aware of the vial case; I certainly would find such a thing 
>interesting to read. 

That's the problem:  These kinds of cases are often not well publicized.  
People like you get a vastly over-optimistic view of "the law" when you 
don't know the distances the thugs will go to persecute and prosecute people.  

> If this was what happened, and laws exist that 
>allow this, then we ought to repeal those laws, but I don't see the 
>baring that has on this case; I have already said that they should 
>narrow the language so that it will not be used to the ridiculous 
>extream.

Question:  let's suppose the wording of this section of this bill CAN be 
"used to the ridiculous extreme"?  If we presume that the people who wrote 
this bill were intelligent and knew what they wanted, why would not not 
conclude that "the ridiculous extreme" is EXACTLY what they wanted?  And if 
that's the case, then we'd damn well better figure out just how "ridiculous" 
those extremes are!

>> >> 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. 
>> 
>> Why would "those that are in the middle" object to a bill which is
>> little more than a re-statement of rights we already believe we
>> have?!?
>
>I am not talking about reality; I am talking about what they can tell 
>the voters if they are beat up over passing such a bill.  You seem to 
>over rate the average voters grasp of the issues.  It doesn't matter 
>that the bill really creates or diminishes crime, it is how the 
>voters can be made to perceive it.

I've already pointed out that "the average citizen" is unaffected by crime 
whose investigation can be "thwarted" by the use of encryption.  You're 
going to have to explain why such a section is even there: Who is it going 
to appease, and why?


>> > 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.
>> 
>> There is no viable middle ground here.  Any tool can be abused.
>>
>
>If that is true, than you are left with those that are the oppressed 
>and the jack-booted thugs.  I do not believe that the only motivation 
>of those that are opposed to strong encryption is to oppress me.  
>Many are trying to do what they think is right, this provision is 
>their to give those that are tetering between the two options an easy 
>way to move to our side.

You mean POLITICIANS, don't you?  Not ordinary citizens!

>> >  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. 
>> 
>> On the contrary, my opinion is "The _government_ is a serious
>> problem that we are already having a terrible time dealing with."  
>> Fortunately, I've found a solution, and the government is trying as
>> hard as it can to prevent it (and "crypto-anarchy" in general) from
>> taking root.
>>
>
>Good premise, now if you could sell that premise to everyone in 
>Congress than your right this provision is useless.  Unfortunately, I 
>don't think you will have much luck with this.

The reason I can't "sell this premise to everyone in Congress" is that it is 
exactly those people who are the problem!   And my solution involves either 
535 resignation letters or 535 coffins, whichever.  And they are reacting 
predictably.


>> > 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.
>> 
>> Ha ha!  That's rich!  There is no reason that a "pro-encryption"
>> bill has to contain any general "anti-crime" clauses.  The average
>> person is afraid of burglars, muggers, murderers, rapists, car
>> thieves.  When is the last time the average person was the victim of
>> a crime whose investigation could be "thwarted" by the use of
>> encryption?  If you can't think of an example, you've just proved my
>> point:  This provision is entirely irrelevant to the average citizen
>> (at least in a "positive" way) and can't be considered a "win" for
>> him. 
>
>You talk about my being naive, this takes the cake.  Do you really 
>believe that any pro-crypto bill could make it through Congress with 
>out some sort of anti-crime clause?  

That might be the "realistic" position, but it's a position which assumes 
that the government employees have their own agenda and interests, and will 
act on those interests and against those of the average citizen.  This is 
certainly true, obviously, but that is exactly where the problem lies!

Jim Bell
jimbell@pacifier.com


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