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Re: Leahy's guillotine.
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At 11:44 PM 3/9/96 -0500, Chris Townsend wrote:
>> 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.)
>
>
>??? Your third sentence doesn't make any sense.
Well, I'll separate it for closer review:
>> 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 problem is that the original sentence (in the proposed law) is
ambiguous. But I think the most likely interpretation is that it is the
"information" which is in "furtherance of a felony," and "obstructing the
commmication" of that information is the crime they define.
> While I agree with your
>position, why would it *possibly* be a crime to interefere with felonious
>communcations?
The law is POORLY worded. Padgett Peterson noticed this yesterday, BTW, and
commented on it on Cypherpunks. You've stumbled on the alternate meaning
that he complained about. Realistically, however, I think we can probably
agree that this meaning was not the one they intended; that's why for
purposes of analysis I study the other meaning.
> The lanuguage is lamentably unambiguous about the
>fact that it is the obstruction and not the information that is
>in furtherance of a felony...
I think I disagree. What we need, however, is an "emergency-call English
major" who could diagram the various possibilities for us and we could
study them separately. There's plenty of ambiguity in this sentence; but I
think that is absolutely intentional.
>> 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?
>
>It is quite conceivable that an unsuccessful attempt to obstruct
>justice might cause additional trouble, time, and expense to the
>guys in the white hats.
That depends on who you believe actually wears the white hats...
> Note that the language does not distinguish
>between successful and unsuccessful attempts...though you're right
>that it seems that only unsuccessful attempts could be verified...
>the rest is clouded by your assumption that the information, rather
>than the obstruction, must be in furtherance of the crime...
Well, I invite you to try to construct an interpretation of the sentence in
as many ways as you can imagine. I think you'll discover that it is
practically intended to mislead.
>> 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?
>
>Probably. That's what the word "willful" is doing in there. Read
>carefully: it's willful obstruction, not willful encryption...
Justa sec... I think you've forgotten that merely running an anonymous
encrypted remailer could be considered "willful obstruction." Now, if the
communication wasn't "in furtherance to a felony" then it wouldn't be
criminal (it would be a LEGAL "willful obstruction, right?) , but then again
the operator wouldn't know that, would he?
Which brings us to yet another ambiguity: The operator of an anonymous
encrypted remailer wouldn't know that any given packet was "in furtherance
of a felony" but he MIGHT be absolutely aware that any one of them COULD be!
Does this rise to the level of violating the law? If not, why not?
>I am not a lawyer, although I play one on the net.
>
>I agree with your position, but you're not reading as closely
>as the enemy will...
Who, in this case, is "the enemy"? As far as I can see, "the enemy" are the
people who wrote this section of the bill.
While it's been a few decades since I last diagrammed a sentence, I will
start by putting parentheses around sections of this sentence to separate it
into what I believe is its "intended" meaning.
>> 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 challenge anyone to re-write this section to:
1. Achieve what he believes to be a "reasonable" result and
2. Avoids the criticisms that I've previously mentioned WRT this portion of
the
bill.
Also, I think anyone who supports this kind of section should be able to
give me a few examples of crimes whose investigation has (or could be)
thwarted in a way that would violate this section. I've said it before and
I'll say it again: The average citizen is essentially never the victim of a
crime of this type. For whom, then, is this law written? I think it's
written for the benefit of the politicians alone. They want to live.
Jim Bell
[email protected]
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