RE: Leahy bill, legalize crypto

["Robichaux, Paul E" <perobich@ingr.com>]

Tim May said:
>Suppose encryption is allowed, but only with key escrow? [...]
>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. 

The restriction on using encryption on the ham bands is an outgrowth of the 
world-wide spectrum allocation process. Spectrum's allocated by the 
International Telecommunications Union (ITU); every four years, the World 
Amateur Radio Council (WARC) meets to go over existing allocations. 
Sometimes hams lose (as when the 220MHz band went away) and sometimes they 
win.

The ITU accords were originally signed around WW I, when use of encryption 
on the radio bands was of great concern. The whole licensing system is based 
on the concept of an Amateur Radio _Service_, whose operators are licensed 
by the FCC to use a "public" resource. Said use is restricted by 
international treaties to which the US is a signatory.

The difference here is that the courts have upheld government restrictions 
on broadcast spectrum because it's a scarce resource. In the special case of 
encryption on ham bands, no one's ever even challenged the restriction 
AFAIK. As Duncan Frissell has preached here many times, bandwidth is no 
longer as scarce, so I think a constitutional challenge to an encryption ban 
would probably be workable.

-Paul