IP: NYT: Law Proposed to Regulate Devices That Code Messages

[David Farber <farber () cis upenn edu>]

CLINTON ADMINISTRATION FLIP-FLOPS ON ENCRYPTION ISSUE (from Edupage)


Reversing its previous assurances that it was opposed to domestic encryption
controls and determined not to regulate the development of Internet
commerce, the Clinton Administration has drafted legislation that would
require all encryption technology to include a "trap door" feature allowing
immediate decoding of any message by law enforcement officials armed with a
court order.  The plan, which is opposed both by civil libertarians and by
the technology industry, would also require telephone companies and Internet
service providers to use the same feature in any encryption systems they
offer. (New York Times 7 Sep 97) 




To: community-list () community org uk
Subject: Re: NYT: Law Proposed to Regulate Devices That Code Messages 
Date: Tue, 09 Sep 1997 15:29:21 -0700
From: John Gilmore <gnu () toad com>




If GILC is writing something about this, please pay some attention
to framing the debate.


"Mandatory key recovery" is the wrong way to think about it.
"Regulating devices" is the wrong way to think about it (NYT headline).


"Making it illegal to use cryptography" is the right way to think about it.
"Use cryptography, go to jail" is the right way to think about it.


Oh, they have some exceptions for certain kinds of favored cryptography,
but the main thrust is to throw people in jail who do something other
than what they are told to do.


Viewed from a civil rights perspective, the question is not whether
key recovery should be mandatory or whether crypto devices should be
regulated.  If you debate it on those terms, you've already lost.  The
question is whether governments have any legal or moral right to
control free citizens' access to privacy technologies.


Once you concede them that right, you will be hard-pressed to defend
any particular point on the line, from benign to malevolent regulation.
They'll just say, "Classified evidence tells us different,
thank you, good bye" -- whether there really is any such evidence or
not.


This is the American experience of more than a decade: until we
started defending it as a civil rights issue, we got essentially
nowhere against the spooks and wiretappers, who see it as their job to
lie to protect "the national security and public order", i.e. their
power.  I have concrete examples of such lies, documented in
classified Congressional testimony (since declassified), and in NSA's
interaction with Dan Bernstein (the plaintiff in the case that just
got the export controls declared unconstitutional).


(The reason the Administration suddenly shifted toward domestic
control of crypto is because the Bernstein case knocked out their only
other club to push key recovery: the export controls.  We aren't yet
free to export, while the higher courts chew on things, but the
Administration can see the writing on the wall.)


        John Gilmore