constitutionlity of mandatory GAK

[Hal Abelson <hal@htp.hpl.hp.com>]

Given the current discussion of possibile GAK legislation, you may
want to check out the session from last March's Computers, Freedom,
and Privacy Conference on outlawing non-escrowed encryption.

We invented a manadatory GAK law "Cryptography Control Act of 1995"
and debated its constitutionality in a mock "Supreme Court" hearing
before a panel of real fedreral judges.  The briefs and the oral
arguments (available on the Web in RealAudio format) are an excellent
source on questions of whether mandatory GAK would be constitutional.

The text of the web page is attached below.  The actual page has links
an extensive set of documents.

By the way, watch for the announcement for CFP97, which will be held
March 11-14 in Burlingame, CA.

-- Hal Abelson

		    ******************************

Text from the Web page:

      http://swissnet.ai.mit.edu/~switz/cfp96/plenary-court.html



CFP96 Plenary Session

Before the Court: Can the US Government Criminalize Unauthorized Encryption?

Presented on Thursday, March 28, 1:30-3:30 PM

   * Report on the session from the CFP96 Newsletter
   * Recording of the oral arguments (in RealAudio format)

 Advocates for the Government: Mark Rasch
                               Mark Jackowski
 Advocates for the Defense:    Andrew Good
                               Phil Dubois
 Federal Judges:               Hon. Sandra Lynch
                               Hon. Susan Bucklew
                               Hon. William Castagna
                               Hon. Nancy Gertner
                               Hon. William C. Young
 Shadow Panel:                 Judith McMorrow
                               Charles Nesson
                               Maureen O'Rourke
 Majority Opinion:             Michael Froomkin
 Dissenting Opinion:           Christine Axsmith
 Bench memo:                   Alyssa Harvey
 Brief writers (appellant):    Jeffrey Hermes
                               Chris Kelly
 Brief writers (respondent):   Bob Kluge
                               Dan Zelenko
                               Scott Faga
 Organizer:                    Andrew Grosso

Looming over the controversies surrounding the Digital Telephony
Legislation, the Clipper Chip proposal, and the criminal investigation of
PGP, is the shadow of perhaps the most critical issue of them all:

     Will Americans be prohibited from ensuring the privacy of their
     communications, including preserving those communications against
     government intrusion? Will strong, non-escrowed encryption be
     outlawed, and those who use it subjected to criminal prosecution?

CFP96, in co-sponsorship with the American Bar Association, Criminal Justice
Section, presented a moot Court highlighting this question. The format was
that of a Supreme Court argument, where former federal prosecutors argued
against noted civil liberties lawyers before a panel of five federal judges.
A second panel, comprised of regional law school professors, served as a
shadow court and rendered a written judgment on the case.

The issue being tested was whether an individual, who has successfully used
outlawed encryption to hide his conversations while the target of a criminal
investigation, can be prosecuted and convicted for use of unauthorized
encryption under the (fictional) "Cryptography Control Act of 1995".

The background for this session assumed that the defendant's conviction was
upheld 2-1 in an appeals court decision, whose majority opinion and
dissenting opinion set forth the central Constitutonal arguments for
upholding, or overturning, the prohibition of unauthorized encryption. At
the CFP session, the Court reviewed the decision and the shadow court
overturned it, rendering a majority opinion and a concurring opinion.

Documents available

The appeals decision

   * Overview
   * Opinion for the Court filed by Circuit Judge Mitchell.
   * Concurring statement filed by Circuit Judge Froomkin.
   * Dissent filed by Circuit Judge Axsmith.

The review before the Court

   * Brief for the Appellant
   * Brief for the Respondent
   * Bench memo
   * Recording of the oral arguments (in RealAudio format)
   * Majority Opinion by Justices McMorrow and O'Rourke
   * Concurring Opinion by Justice Nesson

Session participants

Arguing on behalf of the government were former federal prosecutor Mark
Rasch, and Mark Jackowski, Assistant US Attorney from Tampa, Florida. Mr.
Rasch is a former Trial Attorney with the Department of Justice Fraud
Section, in Washington, D.C, where he prosecuted the Robert T. Morris case.
Mr. Rasch (Mark_Rasch@cpqm.saic.com) is currently Legal Counsel for the
S.A.I.C. Corporation, headquartered in Reston, Virginia, specializing in
computer security matters. Mr. Jackowski became an AUSA in 1984, and
concentrated in prosecuting very complex narcotic importation organizations.
He tried the BCCI case, a six month trial which took place in Tampa in 1990.
He also indicted Panama's General Noriega. He is currently with the
Independent Counsel's Office investigating HUD Secretary Henry Cisneros.

Representing the defendant were two prominent attorneys in the area of cyber
liberties, Andrew Good (agood@world.std.com / (617) 523-5933) and Phil
Dubois (dubois@dubois.com / (303) 444-3885). Andrew Good of Silverglate &
Good specializes in criminal defense and civil liberties law. He is
currently a member of the ABA Task Force on Technology and Law Enforcement,
and was co-counsel for David LaMacchia and for Steve Jackson Games, Inc. Mr.
Dubois is a solo practitioner in Denver Colorado; among his clients is Phil
Zimmermann, author of PGP.

The panel judging the arguments was comprised of federal appellate and
district court judges:

   * The Honorable Sandra Lynch serves on the United States Court of Appeals
     for the First Circuit, and sits in Boston, Massachusetts. She was
     appointed to the bench by President Clinton.

   * The Honorable Susan Bucklew is a United States District Court Judge for
     the Middle District of Florida, sitting in Tampa. She was appointed to
     the bench in 1994 after having served a Circuit Court Judge for the
     State of Florida.

   * The Honorable William J. Castagna is a Senior District Court Judge U.S.
     District Court Judge for the Middle District of Florida, sitting in
     Tampa. He was appointed ot the bench in 1979.

   * The Honorable Nancy Gertner is a United States District Judge for the
     District of Massachusetts, in Boston, Massachusetts. She was appointed
     by President Clinton.

   * The Honorable William C. Younga is United States District Judge for the
     District of Massachusetts, in Boston, Massachusetts. He also serves as
     an adjunct professor at Harvard Law School.

A second panel, made up of regional law school professors, served as a
shadow court and rendered a judgment on the case.

   * Judith McMorrow (McMorrow@hermes.bc.edu) is Associate Professor of Law
     at Boston College. She has served as a law clerk for the former Chief
     Judge of the United States Supreme Court, Warren Burger. She earned her
     J.D. from the University of Notre Dame Law School, and has a B.A. from
     Kalamazoo University.

   * Maureen O'Rourke (MO1@acs.bu.edu) is Associate Professor of Law at
     Boston University. She holds Bachelors' degree in accounting and
     computer science from Marist College, and a J.D. from Yale Law School.

   * Charles Nesson is Professor of Law at Harvard Law School. Contact:
     nesson@hulaw1.harvard.edu / 617 495-4609

   * The shadow court rendered a Majority Opinion and a Concurring Opinion.

Michael Froomkin (Appeals Court Majority Opinion) is an Associate Professor
of Law at the University of Miami, in Florida, a position he has held since
1992. He has served as a law clerk for both the Hon. Steven F. Williams of
the U.S. Court of Appeals for the D.C. Circuit, and Chief Judge John F.
Grady, of the U.S. District Court for the Northern District of Illinois. He
earned his law degree from Yale University, holds a M.Phil. degree from
Cambridge University, and earned a B.A. from Yale with a double major of
economics and history. Among his recent writings is, "The Metaphor is the
Key: Cryptography, the Clipper Chip and the Constitution", which was
published in 1995 in the University of Pennsylvania Law Review. Contact:
Froomkin@law.miami.edu / (305) 284-4285

Christine Axsmith (Appeals Court Dissenting Opinion) is a Computer Security
Consultant with the Orkand Corporation, in Washington, D.C., and is
currently assigned to the Office of Consular Affairs of the United States
State Department. She received her J.D. from Catholic University, and holds
a B.S. Degree in Computer Science from Drexel University. Contact:
axsmith@dockmaster.ncsc.mil

Alysssa Harvey (Bench memo) is a student at Georgetown University Law
School.

Jeffrey Hermes and Chris Kelly (Brief for the Appellant) are students at
Harvard Law School.

The brief for the Government was prepared by Bob Kluge and Dan Zelenko
(American Univeristy School of Law) and Scott Faga (George Mason University
School of Law).

Andrew Grosso (Organizer) is currently in private practice in Washington,
D.C. From 1983 to 1994, he served as an Assistant U.S. Attorney in Tampa,
Florida, and Boston, Massachusetts. He earned his J.D. from the University
of Notre Dame Law School, and holds M.S. degrees from Rensselaer Polytechnic
Institute in both physics and computer science. Contact: agrosso@acm.org /
(202) 663-9041