RE: Leahy bill, legalize crypto

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

At 2:41 PM 3/14/96, Robichaux, Paul E wrote:
>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.

Yes, and I said as much--about the bandwidth limitations--in my post. In
the very next line after you stopped quoting!!!!!:

"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."

I'm not usually such a quibbler, but it irks me when people stop the
quoting at a certain point, then make the same point made in the elided
section, then say, "But bandwidth is a scarce resource."

Besides which, I think the "scarce resource" argument against crypto over
the airwaves is clearly a fig leaf. Only amateur, non-corporate users are
affected. The intent of the rules, never repealed, seems more of an attempt
to limit the widespread deployment of ham radio for espionage purposes
(e.g., a ham sitting above a harbor area reporting on ship movements).

This is why I said I could see a parallel argument for limiting crypto. And
if other countries are needed to get an international treaty signed, there
will be no shortage of such lap dogs available to do the bidding of the
U.S. The most otherwise-hostile countries to the U.S. will jump at the
chance to impose a worldwide ban on encrypted communications.

--Tim May


Boycott "Big Brother Inside" software!
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Timothy C. May              | Crypto Anarchy: encryption, digital money,
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