Re: Leahy bill, legalize crypto

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

At 3:18 PM 3/13/96, James A. Donald wrote:

>Any crypto bill that we could realistically get out of Washington will
>substantially reduce liberty.  The best that we can hope for is for
>Washington to forget about crypto until it is too late to stop.

This is our best hope at this point: that Washington moves on to other
things as the campaign heats up and forgets about crypto.

One reason Washington pushed for the Wiretap Act (aka Digital Telephony)
was because digital switches have made conventional methods of wiretapping
and pen registers harder and harder to do. (I'm not a phone phreaker
expert, as some of you no doubt are, so I don't know the details of how
wiretaps were done prior to the advent of digital switches...I picture
wires connected to the back of PBX systems, and I presume the ESS systems
and their ilk changed this dramatically.)

However--and here's the kicker!--they blew it. If you look at Louis Freeh's
testimony before Congress a couple of years ago (which I did in detail, as
I scanned and OCRed it for Whit Diffie, who may make it available soon) he
was clearly worried about the phone system becoming so complex and "so
digital" that FBI surveillance capabilities would fall behind the
technology curve. So, he and his supporters (including the EFF) pushed for
the Wiretap Act.

(No money has yet been allocated, last I heard, so the $500 million
supposedly to reimburse the telcos for providing wiretap capability, hasn't
happened.)

The main way they blew it is that the Wiretap Act ostensibly does not cover
end-to-end encryption, especially as computers are used in place of
telephones. And as Internet voice systems become widespread, especially
with transparent, easy-to-use encryption (Nautilus, PGPhone, etc., in a
couple of version iterations), even some goombah in Little Sicily will be
able to communicate securely and essentially unbreakably.

That they are realizing this, belatedly (although hints of this recognition
can be found in Freeh's comments to Congress), may be why a couple of moves
are occurring:

- a fast-track review by the FCC to determine if "Internet voice" services
are to be regulated, controlled, enacted, redacted, and impacted. (The
traditional phonecos are the ones squealing most loudly, but others are
expressing concern over the "anarchy" of unlicensed Internet applications.)

- the Leahy Bill, which would as various analysts have noted make
disclosure of keys mandatory, would protect the legitimate needs of law
enforcement, blah blah blah.

Speculatively, I can see something coming on the horizon. Suppose the FCC,
under the Telecommuications Act, the Leahy Act (or whatever), and the
Digital Telephony Act, extended to the Internet the same general
restrictions on cryptography that currently apply to the airwaves? Suppose
encryption is allowed, but only with key escrow? While I can think of
various problems with enforcement--the very points many of us have raised
over the past several years--I can also see this as having wide support.
And it might pass constitutional muster (for the same reasons the FCC
jurisdiction over airwaves and the ban on encryption by ham operators, got
approval. Sure, I understand that Internet bandwidth is not the same as the
"public airwaves," but this subtlety may not be enough to stop the parallel
from being successfully drawn. Especially if the phone companies and other
threatened players are pushing hard for the FCC to step in and regulate.

Food for thought.

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we 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,
Higher Power: 2^756839 - 1  | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."