[2909] in cryptography@c2.net mail archive
RE: Junger et al.
daemon@ATHENA.MIT.EDU (Greg Broiles)
Tue Jul 7 00:57:02 1998
Date: Mon, 06 Jul 1998 21:13:03 -0700
To: Ernest Hua <Hua@teralogic-inc.com>, cypherpunks@cyberpass.net,
"'cryptography@c2.net'" <cryptography@c2.net>
From: Greg Broiles <gbroiles@netbox.com>
In-Reply-To: <413AC08141DBD011A58000A0C924A6D52C359A@mvs2.teralogic-inc.
com>
At 07:20 PM 7/6/98 -0700, Ernest Hua wrote:
>So today, I can write the following:
>
>1. Find a container.
>2. Fill container with explosive substance.
>3. Move container to target location.
>4. Detonate container.
>
>As soon as I have a compiler and a target machine that can execute these
>instructions, suddenly this is not speech. However, before this
>compiler and machine combo exists, event the electronic form of this is
>speech!
>
>How could this be?
Context is everything - the First Amendment isn't (and hasn't ever been)
interpreted to protect every conceivable transmission of information in any
form. It's not even necessary to imagine "bomb compilers" to create a
hypothetical which demonstrates the arbitrariness of lines drawn in First
Amendment analysis - for example, the sentence "I'll give you $10,000 if
you kill Joe Victim." can be protected speech sometimes (if, say, it's in a
book or a play or otherwise uttered/communicated in a context which
suggests it's not a real offer) and unprotected speech sometimes (if it's
an honest solicitation of murder for hire). If a bank robber writes "Give
me $10000 in small bills or I'll kill you" on a scrap of paper and hands it
to a bank teller, that's bank robbery; but if the bank teller hands it to a
detective investigating the robbery, it's not bank robbery. Same scrap of
paper, same words .. sometimes a crime, sometimes not.
The sentence "I'll sell you 100 shares of MegaCorp for $1 each! " may or
may not be protected, depending on the relationship of offeror to offeree,
and whether or not the offer seemed to be offered seriously. If you think
about it as "protected speech" vs. "unprotected speech", it helps focus the
question on Constitutional interpretation, not on
metaphysical/philosophical arguments about what constitutes communication.
Reasonably intelligent people can come up with complicated
angels-on-the-head-of-a-pin philosophical arguments about every law, but
they don't get far with judges or juries. ("Ha! You can't convict me for
tax evasion, it just so happens that I filled out my 1040 in octal! Go
ahead, prove that I didn't! Also, it was a joke. And that's not paper, it's
just ground up wood. And maybe someone else sent that tax form in, not me,
and my real one got lost! Can you *prove* that didn't happen?" "That's not
a gun, it's just metal and atoms and stuff, the same as this chair I'm
sitting in. I could rearrange the atoms in that gun to make a hammer - so
it's not like I was carrying a gun, I was carrying an almost-hammer.") If
arguments like that worked in court, there wouldn't be much point in having
courtrooms or trials.
It's difficult to write a law that will prohibit everything bad, yet permit
everything good, and be simple and clear enough that ordinary people can
understand it.
I think it'd be an interesting experiment to create a jurisdiction which
recognized no informational/speech crime - no copyright/trademark/trade
secret law, no protection from threats/extortion, no perjury charges, no
laws against unreasonable noise, no libel/slander laws .. it'd be pretty
different from what we're used to. But I don't think we're very close to
doing so, even though on some days the Internet looks like that.
I think the speech/functionality question is a difficult one, and I haven't
yet seen an opinion (either Patel's or the opinion in _Karn_) which I think
answers it well. I don't think I could do a better job - can you? I haven't
seen the opinion in _Junger_ yet, so I can't offer any opinions about
whether or not it's sensible, but the underlying issues are difficult -
both the speech/functionality question, and the national security question.
I don't give the national security question a lot of weight in my own
analysis (because I'd rather have an insecure nation than a totalitarian
one) but it is one which judges will take seriously, see Stewart Baker's
quotes in the NEWS.COM article.
--
Greg Broiles |History teaches that 'Trust us'
gbroiles@netbox.com |is no guarantee of due process.
|_Kasler v. Lundgren_, 98 CDOS 1581
|(March 4, 1998)
