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Re: key escrow arguments (fwd)
Date: Thu, 18 Sep 1997 13:08:56 -0400
From: Andrew Grosso <[email protected]>
[Published last year in the Federal Bar Journal.]
THE LAW ENFORCEMENT ARGUMENT FOR MANDATORY
KEY ESCROW ENCRYPTION: THE "DANK" CASE
by Andrew Grosso
A few comments on some statements the author makes that stuck me as I read
> Finally, the extent of the federal government's ability to
>legislate in this area is limited. Legislation for the domestic
>control of encryption must be based upon the commerce clause of
>the U.S. Constitution. That clause would not prohibit an individual
>in, say, the state of California from purchasing an encryption
>package manufactured in California, and using that package to
>encode data on the hard drive of his computer, also located in
>California. It is highly questionable whether the commerce clause
>would prohibit the in-state use of an encryption package which had
>been obtained from out of state, where all the encryption in done
>in-state and the encrypted data is maintained in- state. Such being
>the case, the value of domestic control of encryption to law
>enforcement is doubtful.
this person has obviously no familiarity with the tenuous nature of most
"commerce clause" claims. if they can claim that a potato farmer, growing
tomatoes locally, selling and transporting his harvest locally still falls
under the 'commerce clause' rationale for some legislation, they can pretty
well call anything 'interstate commerce'.
I'll treat this next bit incrementally.
> Our constitution is based upon the concept of ordered
>liberty. That is, there is a balance between law and order, on the
>one hand, and the liberty of the individual on the other. This is
>clearly seen in our country's bill of rights, and the constitutional
>protections afforded our accused: evidence improperly obtained is
not any more. all the cops or whoever has to do is claim a 'good faith'
exemption for the search, and, Bingo! it is suddenly admissable. There are
several recent Supreme Court cases on this.
>there is a ban on the use of involuntary custodial
>interrogation, including torture, and any questioning of the accused
>without a lawyer;
This, likewise has been narrowed in recent years by the court. One thing to
remember if you are being spoken to by some jack-booted thug working for
some level of the state, is to say =nothing= to them. They can sit there
and question you at length, and until you think to demand a lawyer, you are
screwed everything up to that point is admissable. There have even been
recent erosions of what constitutes asking for a lawyer.
>we require unanimous verdicts for convictions;
Ever since the O.J. trial, there have been calls to eliminate this. I
wouldn't be suprised to see it within a decade.
>and double jeopardy and bills of attainder are prohibited.
This is absolutely laughable. You can be tried in state, federal and civil
court for the same crime. This is all perfectly fine as faer as the courts
are concerned. Likewise, there are so many laws now on the books, that if
they can't get a conviction on one charge, there is a pretty good chance
there is another charge they can make.
>words, our system of government expressly tolerates a certain level
>of crime and disorder in order to preserve liberty and individuality.
This is no longer true.
>It is difficult to conceive that the same constitution which is
>prepared to let a guilty man go free, rather than admit an illegally
>seized murder weapon into evidence at trial, can be interpreted to
>permit whole scale, nationwide, mandatory surveillance of our
>nation's telecommunications system for law enforcement purposes.
>It is impossible that the philosophy upon which our system of
>government was founded could ever be construed to accept such a
I laugh at that.
> In our country, the domestic control of encryption
>represents a shift in the balance of our liberties. It is a shift not
>envisioned by our constitution. If ever to be taken, it must be
>based upon a better defense than what "Dank," or law enforcement,
true enough. the problem is, that there is no defense for it. it is a basic
binary decision. either you can speak freely or not.
---------------End of Original Message-----------------
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