From: Zhahai.Stewart@f93.n104.z1.fidonet.org (Zhahai Stewart)
Newsgroups: comp.org.eff.talk
Subject: Re: Registered Keys - why the need?
Date: Sun, 08 Nov 92 16:57:16 PDT
Organization: FidoNet node 1:104/93 - Adelante, Boulder CO

 >By the way, I would support a law making it a criminal offense to use
 >cryptology to aid criminal or espionage enterprises, provided it were
 >limited to after-the-fact use to increase penalties on those convicted
 >of such crimes, rather than before-the-fact use to limit civil
 >liberties of ordinary citizens.

 KD> Why?  

 KD> If a crime is a crime, then it IS.  Why would the use 
 KD> of cryptography be a factor in the punishment that a crook faces?

 He is attempting a cross-over of a tactic used by gun advocates: penalize
 gun/crypto use only AFTER a crime is committed and convicted, rather than
 prohibit its use to everybody (mostly non-criminals and non-convicted)
 beforehand.  I don't know if such laws have ever had any useful effect.
 Superficially this sounds good, until one looks deeper.

 BUT...

 I personally am still uncomfortable, since privacy is a different sort
 of issue than guns.  Such "criminal use of encrytion" laws would have to
 have stringent enough penalties to be a deterrent; as such, they could be
 used to "load up charges" against comparatively minor crimes.  For 
 example, charges of Tax Evasion or Conspiracy to Provoke Riots Across
 State Lines (Chicago 7), or many other things might use such a provision 
 selectively just to intimidate beyond their original mandate; if the 
 original crime was determined to be X bad, and suffers penalties 
 accordingly, does the mere use of encryption make it X+Y bad with 
 correspondingly enhanced penalties?  (In the case of guns, maybe so: 
 they make the likelyhood of killing or injuring bystanders or victims 
 MUCH higher; in the case of encryption, I don't see the analogy).

 Secondly, how does this proposal fit with the question of whether the
 data was in fact decrypted or not?  Case 1: defendant readily yeilded
 keys - why increase any penalties?  Case 2: defendant did not yield
 keys and encryption was not broken, so no encrypted data was used in
 the conviction - then the new laws would seem to be interference with
 fifth amendment rights (an additional penalty for not incriminating
 oneself - in addition to the existing Contempt of Court pressures!).
 Case 3: keys not yielded, data broken anyway - what does the proposed
 law improve about this situation?

 Use of guns in crime tend to make the crime potentially more dangerous
 to victims and third parties than the same crime would have been 
 otherwise; this in itself is a form of criminal endangerment.  Use of
 encryption (or safes) does not; it merely makes the government's case
 harder to prove.  It is not our responsibility to make the government's
 case - in general, the adversarial nature of the system is that we or
 our lawyers attempt to discredit the government's case, not to aid in
 its easier proof.  It is an unfair burden on the individual to have to
 assume responsibility for "not making the government's prosecution too
 hard", in addition to proving their innocence.

 The fundamental problem is that keys are MOSTLY very unlike guns; there
 are a few interesting similarities, but these are more likely to lead
 one astray when the most important issues come up.  The fragment you
 quote is a good example of this: pulling a gun protection tactic into
 the encryption/privacy debate, based on the superficial similarities.

 Encryption is more closely analogized to having a locking file cabinet,
 or a good safe, or writing cryptic notes that others have trouble 
 understanding.  Should the penalty for a crime be increased because
 the defendent owns and uses locks on their file cabinets, or safe?
 I think not.

 Let's drop this privacy/gun analogy.  It confuses the issues more than
 it clarifies, where the rubber meets the road.
    ~z~


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