From: Zhahai.Stewart@f93.n104.z1.fidonet.org (Zhahai Stewart)
Newsgroups: comp.org.eff.talk
Subject: Re: Registered Keys - why the need?
Date: Wed, 04 Nov 92 16:44:44 PDT
Organization: FidoNet node 1:104/93 - Adelante, Boulder CO

 l> But there's another
 l> situation where the case is different:  Encrypted record keeping.

 Um, I believe that's an old problem.  Bookies and such have been reputed
 to attempt to "code" their entries for quite a while.  I suspect that
 sometimes they succeeded, and sometimes not.  Since the advent of the
 personal computer over a decade ago, serious one key encryption has been
 available, and at least according to rumor, made use of by criminals.

 Your many examples appear to seek to show that in some cases, such 
 encryption makes law enforcement more difficult.  I cannot imagine that
 anyone would disagree, so let's posit that.

 Now what?  Would you propose legislation outlawing personal encryption?
 How would this be enforced?  This would be pretty much like outlawing
 any safe the government cannot open; pre-emptive deprival of the rights
 of privacy to the hundreds of millions, because among them there might
 be thousands who are criminals and whose prosecution might be harder.
 Obviously your point that there is a tradeoff makes sense; but where
 does one make the tradeoff?

 This tradeoff is made worse by the inherent dynamics of the situation.
 A serious criminal (the ones we all want caught, right?) has a lot at
 stake; they are going to be more willing to risk illegal encryption.
 What's a two year sentence for illegal encryption, as compared to a 
 long term for conviction of a serious crime?  So maybe illegal 
 encryption has to have a penalty more commensurate with high crime, 
 right?  But what's the effect on merely privacy oriented good 
 citizens?  They are generally not going to want to risk serious
 imprisonment for just a good principle.  So for every serious 
 criminal pondering whether the risks of using encryption are worse
 or better than not using it, we have terrified thousands of non
 criminals.  Is that a good way to run a society?

 By the way, your examples of Nixon's tapes, Ollie North's mail messages,
 and Weinberger's diary probably are not great ones.  Besides any fifth
 amendment rights, there are also "executive privilege" complications.
 And it seems generally conceded that had they successfully destroyed the
 info, they would have gotten away with it (indeed Ollie did try, he just
 forgot that the system administrators had backups).  And you don't see
 any of these "slips" happening twice.  With or without encryption, we
 will never see another president preserving incriminating tapes, nor 
 a national security operative forgetting about backups.  I don't think
 the availability of better encryption to the upper echelons of the
 executive branch, much less to ordinary citizens, will change that 
 outcome.

 I can see the point about "legitimate" law enforcement access to records.
 But I don't believe that in pragmatic terms it is possible at this stage
 of technology to keep encryption out of the hands of the big criminals,
 however much we might desire to do so.  What we can determine, I believe,
 is whether non criminals have privacy too.

 Destruction of evidence is also illegal.  But I would not expect to 
 extend that to prohibiting any citizen from ever erasing backup tapes, 
 *just in case* there might be criminal evidence on them.  (Which would 
 only be true in a tiny percentage of cases, the ones who would erase 
 it anyway).  We cannot define the primary criteria of a free society 
 as aiding law enforcement (even tho that is desireable) at the cost of 
 everyone's individual liberty.

 I believe that there are inherent costs to freedom; personal liberty is
 not free of risk, and cannot be.  It is possible that one cost of good
 personal privacy for the hundreds of millions will be that *some* white
 collar criminals (as you refer to) will go free when they should face
 legal penalties.  The latter is not good, it is not desirable; but it
 just might be one of the costs of widespread freedom.  The citizens
 should have the right to determine whether they are willing to pay that
 cost; the decision should not be made "on their behalf" by the vanguard
 party, nor the law enforcement establishment.

 I reject any compromise which will sacrifice the privacy of everyone,
 in order to hypothetically make prosecution of the very few easier, and
 especially since I am quite dubious about the real world effect of the
 latter.  

 By the way, what you say about the fifth amendment will still apply.
 Whether it regards telling the court where something is hidden, or what
 your encryption key is, doesn't matter a whole lot.  That aspect of the
 tradeoff will still exist; there is no need to ban encryption (or ban
 hiding things) pre-emptively for it to operate.

 l> A judge can hold you in jail essentially indefinitely.  (There was a 
 l> celebrated case a of a woman who refused to reveal the whereabouts of 
 l> her child, claiming her ex-husband was abusing her.  She was in jail 
 l> for several YEARS, and was only freed as the result of a
 l> new law that, for the first time, placed a limit on 
 l> such jailings.  This law was passed in direct response to this case; 

 Laws such as those which protect the confidentiality of confessions made
 to a Roman Catholic priest were likewise the result of brave and strong
 human beings who suffered indefinite imprisonment on moral grounds.  This
 is a natural grounds for the struggle to define the relative rights of
 individuals and the state; it takes more courage than most of us have,
 but at least some folks who put their lives where their convictions are,
 peacably, can extend the boundaries of individual liberty for others.
 Proposals to ban illegal encryption, or to force registration of keys
 with the government, avoid all this.  They would be the equivalent of
 putting a gov't mike in all confesssionals (tapes to be played back only
 on court order, of course), or to keep track of all kids by technical
 means (likewise) just in case law enforcement needed the evidence or
 information - thereby bypassing individual conscience and that whole
 route towards defining appropriate boundaries between the individual
 and the state.  "Tell us X"  "I refuse on moral grounds"  "Oh never
 mind, we were just trying to save a few hours; we can get any info we
 want without your cooperation anyway".

 By the way, I think that in this country it may either take a 
 Constitutional Amendment (such as the Privacy and Personal Autonomy
 Amendment currently being formulated by the ACLU), or a series of brave
 individuals willing to defy Court Orders to give up keys, or both, to
 resolve this balance.  Freedom is not cheap.

 Please do not mistake me for a Libertarian!  I do accept that the state
 has justification for some intrusions.  I just believe that in some of
 these current situations, the state cannot reasonably ensure its desired
 goals without a massive deprivation of individual rights.  Because the
 initial attempts to gain such control will mostly fail, the state will
 have to become ever more Draconian in a hopeless attempt to achieve a
 desireable result, but with the wrong tools.  Individual freedoms will
 be the casualty.
    ~z~


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