Re: [Fwd: FW: California State Bill SB1386]

[<digigal11 () hushmail com>]

> -----Original Message-----
> From: Jonathan A. Zdziarski [mailto:jonathan () networkdweebs com]
> Sent: Monday, March 24, 2003 11:02 AM
> To: 'Steve Zenone'; incidents () securityfocus com
> Subject: RE: California State Bill SB1386
>
>
> > the fundamental question of what defines encryption, so far as
>
> The question is not what defines encryption but what defines
> unencryption...plain text that is...if enough information has been
> transmitted that it could be reasonably converted into plain text,
> it
> should be reported...the bill was probably written this specific
> way to
> avoid a debate about what encryption is.  It doesn't seem to matter
> what
> method you use...the question is whether or not it can be reasonably
> converted to plain text.  If ROT-13 was used, that's reasonable...
> if a
> high-bit key was used, is only reasonable if the key was also stolen
> or
> if there is reason to believe enough information got out to launch
> a
> reasonable cryptanalysis.

Actually, the question of what constitutes encryption is not a factual
question at all, as it pertains to Cal Civ Code 1798.82 (the law that
SB1386 changed). It's a legal question - how should or will the courts
interpret the word "encryption." First, they will define it, then they
will apply that definition. In defining it, the courts rely on existing
case law where the same or similar questions were answered. If you want
to know how California courts define "encryption," look up cases involving
not only encryption but also protection of information, privacy, electronic
communication protections, etc.

The first tests of this law will serve to define it, refine it, and provide
future governance. That's typically the way it happens.



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