[2911] in cryptography@c2.net mail archive
RE: Junger et al.
daemon@ATHENA.MIT.EDU (Ernest Hua)
Tue Jul 7 07:12:01 1998
From: Ernest Hua <Hua@teralogic-inc.com>
To: "'Greg Broiles'" <gbroiles@netbox.com>
Cc: cypherpunks@cyberpass.net, "'cryptography@c2.net'"
<cryptography@c2.net>
Date: Mon, 6 Jul 1998 21:53:36 -0700
Well, let's be clear about what we are talking about ...
First, speech which comes out of our mouths or gets written on paper has
generally been considered "speech" in the legal sense where someone is
expressing an idea. Clearly, bombing a abortion clinic as political
"speech" (and it is clearly political speech in the sense that the
bombing is expressing a anti-abortion/pro-life political idea). What is
illegal is not the idea, but the method used to express the idea.
That the bombing itself was illegal does not make the message less of a
"speech". It is still an expressed idea.
Second, if I write, in a message, a prose description of an encryption
algorithm, and included C code with it (just a code fragment, certainly
not compilable as-is), the NSA and the FBI would still feel that they
can prosecute me under ITAR, and they will claim that this is not
speech. Therefore, this argument that it is functional in the sense
that a compiler can automatically convert my E-Mail into a machine is
ridiculous; the government has no intention of leaving it as just a
context-sensitive law. They want to ban every single spread of
cryptography they don't like (non-GAK).
In short ...
A drawing of a machine is not a machine.
A state diagram of a machine is not a machine.
A program instructing a machine is not a machine.
A dollar bill inserted into vending machine is not a machine. (The
insertion/insertability does not suddenly turn that dollar bill into a
machine, even though it is pretty darn functional.)
Ern
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.
