IP: Two on Avoiding prosecution of the DMCA (Ferguson, RISKS-21.60): [risks] Risks Digest 21.62

[David Farber <dave () farber net>]

> Date: Sun, 19 Aug 2001 20:56:30 -0400
> From: David Petrou <dpetrou () cs cmu edu>
> Subject: Re: Avoiding prosecution of the DMCA (Ferguson, RISKS-21.60)
>
> Just staying out of the U.S. won't necessarily do the trick.  The DoJ can
> obtain an arrest warrant based upon a criminal violation of the DMCA and
> seek extradition from a number of countries.  If US law is violated and the
> country where the person is has an extradition agreement with the United
> States, the foreign government will cooperate in arresting the person and
> having that person delivered to the United States for prosecution.
>
> ------------------------------
>
> Date: Fri, 17 Aug 2001 15:47:51 -0700 (PDT)
> From: Fred Cohen <fc () all net>
> Subject: Re: Avoiding prosecution of the DMCA (Ferguson, RISKS-21.60)
>
> The DMCA has also had effects on my forensic analysis products.  Because the
> current copyright law makes anything that is put into tangible form
> copyright unless made otherwise by the author (or by law), things like
> criminal records are copyright.
>
> This means that if the criminal tries to protect their material - for
> example by hiding it using steganography, encrypting it, or by putting
> it on a computer with a password to prevent unauthorized access - then
> that work is protected by the DMCA (after all, the password on Windows
> systems is effective protection unless you try to circumvent it).
>
> Because the primary purpose of most of my forensic analysis tools is to
> reveal things that are protected from revelation, and because the DMCA
> makes it illegal to distribute such a device, I have been forced (based
> on the recent arrests and other threats against authors of such things)
> to withdraw my forensic products from the market.
>
> I should note that companies like Access Data who sell products that are
> explicitly designed for undoing encryption, etc.  are almost certainly in
> violation of the DMCA.  While the FBI might not arrest them now because they
> sell to the FBI (and other in law enforcement - as did I), this does not
> mean that the FBI cannot arrest them at any time and charge them with a
> felony.  Indeed, sale to law enforcement is not legal, even though law
> enforcement can, on its own, build and use such tools.
>
> The effects on research and education are even more interesting.  For
> example, I am having a discussion with my university now about canceling
> courses on forensics and cryptanalysis because in these courses we teach
> people how to get around protection of this sort and may provide the
> capabilities to do so in so teaching.  The DMCA has, I believe, made this
> illegal - and if you are teaching such a course next semester, you might
> think about the issues as well.  On the research side, I don't work on
> research I cannot publish, so I am canceling the aspects of my research
> that go into these areas.
>
> Fred Cohen              Fred Cohen & Associates.........tel/fax:925-454-0171
> fc () all net              The University of New Haven.....http://www.unhca.com/
> http://all.net/         Sandia National Laboratories....tel:925-294-2087



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