[845] in cryptography@c2.net mail archive
Re: SAFE vote and cutting crypto-deals, report from House J
daemon@ATHENA.MIT.EDU (Black Unicorn)
Thu May 15 17:41:53 1997
Date: Thu, 15 May 1997 16:34:03 -0400 (EDT)
From: Black Unicorn <unicorn@schloss.li>
To: Marc Horowitz <marc@cygnus.com>
cc: trei@process.com, Phil Helms <phil@cccs.cccoes.edu>, cryptography@c2.net,
trei@c2.net
In-Reply-To: <t53911gcy08.fsf@rover.cygnus.com>
On 15 May 1997, Marc Horowitz wrote:
> Peter, I'm not yet sure of what I think of the new wording, but your
> arguments are all ludicrous. Let's look at the wording again:
>
> "Any person who, in the commission of a felony under
> a criminal statute of the United States, knowingly
> and willfully encrypts incriminating information
> relating to that felony with the intent to conceal
> such information for the purposes of avoiding
> detection by law enforcement agencies or
> prosecution..."
>
> "Peter Trei" <trei@process.com> writes:
>
> >> Crypto enthusiasts picture a future where crypto is embedded in
> >> almost every electronic device, to authenticate users and protect
> >> communication privacy (ie, to prevent crime!).
>
> Ok, this isn't ludicrous.
>
> >> In such a future, almost any act, from making a phone call to
> >> locking a door, could involve crypto, possibly without the
> >> user even being aware of it.
>
> "knowingly and willfully" is hard when you're unaware you're using
> crypto.
Unfortunately, practically a defendant is going to have to prove that he
didn't know. This is because if crypto is widespread, no one is going to
believe that he didn't know.
More likely, several products are going to include crypto, but not all
products. As a result it will probably meet the burden of a scienter
requirement to show that the defendant "choose" to use a phone with
crypto. (Even though it may have been the closest thing at hand).
Defendant goes to a payphone because he/she expects the cops are watching
him. Payphone happens to be encrypted. Show me a court that will buy the
argument he didn't know it was encrypted.
> >> Thus, even the most minor crime might well find the perpetrator
> >> facing a 5-year term.
>
> "in the commission of a felony", not "any minor infraction".
There are several felonies which are a bit tame. I believe adultry is
still a felony in some states.
In fact the statute as worded seems to limit the application to "United
States" laws. I'd have to see how they define this exactly, but they may
mean to limit it to statutes which are federal already.
Combine this with hate crimes, however, and pretty quickly you have some
scary results.
Combine it with the most expansive conspiracy laws in the world and it
gets even scarier.
> >> "Yes, we know that when you scanned Miss November onto your hard
> >> drive, it was only a misdemeanor copyright enfringement, but since
> >> your HD is factory shipped with a sector level encryption system,
> >> we're sending you up the river for 5 years."
>
> "under a criminal statute". copyright infringement of this sort is
> civil.
There can be federal criminal liability for e.g., EPA violations, (dry
cleaners which encrypts its financials is at some risk here).
There are many statutes which can impose criminal liability but which are
essentially civil in nature. The fact that this is not clearly defined
(in what I've seen) is disturbing.
> >> To crypto enthusiasts, this provision is equivalent to adding 5 years
> >> to the sentence if you were breathing at the time the crime was
> >> committed.
>
> If I, as a crypto enthusiast, think that your arguments are this
> absurd, you have no chance at all of convincing the people you need to
> convince. Please come up with a straw man which doesn't explode when
> light falls on it.
It's deeper than that. You may be a legal literalist (so am I) but not
all courts are, and VERY few juries are.
> Marc
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