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Re: "Confessing to a felony"

On Wed, 25 Sep 1996, Timothy C. May wrote:

> At 2:03 AM 9/26/96, Black Unicorn wrote:
> >On Wed, 25 Sep 1996, Igor Chudov @ home wrote:
> >
> >> > >> Soon I am going to be going overseas to Japan, and I want to take
> >> > >> my notebook with me so I can keep up with everything, however, I have
> >> > >> encrypted my hard drive and usually encrypt my mail.  Is this in
> >> > >> violation of the ITAR to keep everything the same when I go over?
> >>
> >> Gentlemen, us customs does not give shit about what you take out
> >> on your diskettes.
> >>
> >> When I went to Russia recenty, I took PGP for DOS, and no one gave
> >> me any problem.
> >>
> >> IANAL
> >
> >Obviously not, you've just confessed to a felony.
> So?
> "Confessing to a felony" is meaningless, as I understand things. While BU
> is a lawyer, and I am not, I maintain "confessing to a felony" is
> meaningless without several necessary factors:

Mr. May is absolutely correct.  But let me discuss why I still think it's

> a. interest by law enforcement that a crime has been committed and needs to
> be prosecuted

Interest by law enforcement is impossible to predict.  It can be driven by
politial winds, and by fancy as well as unlucky coincidence.  (The drug
dealer who is busted because the police respond to a fight 911 call at the
wrong address).  The law is not fair in this regard.  Prosecution is
always selective and all one needs is an administration decision (even by
some mid-level idiot at justice) and suddenly crypto export could be a
serious issue.

> b. evidence that the "confession" can be backed up by other evidence

In the case of the export at hand, a passport record exists, and surely
the notebook exists.  Were I a prosecutor with a bug in my rectum, I would
think I had something of a case.

> c. common sense

This has never had anything to do with prosecution.  I wish it did.

> Thus, if even former prosecutor Brian Davis, when he was a prosecutor, were
> to have "confessed to a felony" (for example, saying a bad word on a forum
> where minors might be present, under the CDA, and before it was put on
> semi-hold), his colleagues would just have snickered, thinking him crazy.

There was once a day where confessing to sexual harassment or smoking 
something fishy would have caused this response.  Today it is grounds for
immediate dismissal.

> As to the felony status of taking PGP to Russia, I think it's not a felony.
> The "personal use" exemption in the ITARs certainly makes taking PGP to
> _Western_ Europe an OK thing. Whether Russia is still considered to be
> worthy of an "exemption to the exemption," as it were, is unclear to me.

Unfortunately these kind of exceptions are easily evaded when push comes
to shove.

> Mostly, I think U.S. Customs doesn't care.

If this is true, it is for two reasons.

1>  Because no one has yet told them to care.
2>  Because they find the regulation to difficult to enforce.

Start admitting that you have engaged in the conduct and those two factors
may quickly vanish.

Am I being cautious?  Of course.  Once upon a time it was ok to admit that
you left the country with tens of thousands in cash too.

> --Tim May
> We got computers, we're tapping phone lines, I know that that ain't allowed.
> ---------:---------:---------:---------:---------:---------:---------:----
> Timothy C. May              | Crypto Anarchy: encryption, digital money,
> [email protected]  408-728-0152 | anonymous networks, digital pseudonyms, zero
> W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
> Higher Power: 2^1,257,787-1 | black markets, collapse of governments.
> "National borders aren't even speed bumps on the information superhighway."

I hate lightning - finger for public key - Vote Monarchist
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