From: smb@research.att.com (Steven Bellovin)
Subject: Re: [legality of PGP etc.
Date: Wed, 6 Jan 1993 15:03:38 GMT
Organization: AT&T Bell Laboratories

In article <22.2B4A0D74@purplet.demon.co.uk>, Owen.Lewis@purplet.demon.co.uk (Owen Lewis) writes:
> Where the element of disclosure associated with a patent application 
> is permitted, it seems reasonable to assume that one of the following would 
> apply:
>                 a. The matter is already sufficiently compromised so that a 
> patent application will not worsen the situation. If granted, the patent 
> may even allow an element of control no longer possible by other and more 
> thorough means. However, in particular circumstances, international patenting 
> might not be possible or at least seem the greater of two evils.
>                 b. The matter is not considered sufficiently to affect 
> national security and, consequently, a would be patentee may be left to 
> pursue his commercial interest as best he sees fit. 

Umm -- two points.  First, as I noted in an earlier post, governments
are not monolithic entities.  Just as there are folks at NSA (or GCHQ,
or the KGB, or wherever) who like to read their own domestic traffic,
there are also folks there who want to protect domestic traffic against
their foreign counterparts.  When NSA rules on a patent application,
they have to balance those two competing needs.

The second point is even more important.  Your analysis implicitly
assumes that suppressing an invention is somehow free.  That's not at
all the case.  If the inventor choses to contest the secrecy order,
either in the courts or in the media, NSA will get a lot of bad
publicity.  Read Bamford's discussion of the Davida case -- they felt
very threatened.  Here's what Bamford says:

	The bruises the Puzzle Palace had received in struggles over
	the DES, the Meyer letter, and the secrecy orders had taken
	their toll on both the Agency and its director.  Inman believed
	the NSA had received a ``bum rap'' and was afraid the one-sided
	controversy was having a demoralizing effect throughout the
	Agency and that it would frighten away many promising
	recruits.  Even worse, he told a closed-door meeting with
	employees in the Friedman Auditorium, some of the news stories
	were threatening to cause ``immediate damage'' to the Agency's
	sensitive ``sources and methods.''

When making a secrecy decision, NSA also has to weigh the odds of a
fight, and how bad a fight it's likely to be.  Many large companies
(including, I suspect, my employer) would not fight NSA on most
cryptographic ideas because they value good relations with the
government, and the profit from cryptography is generally low -- the
market isn't that big, as yet.  Universities, on the other hand, have
much less to lose, and have a tradition of academic freedom to uphold.
Similarly, small inventors may not have anything else to sell; if they
can afford to, they'll fight as well.  (N.B.  As far as I know, there
is no provision in U.S. law to keep the fact of the secrecy order
secret.  You're not barred from mentioning it, as opposed to the
subject matter it covers.  I'd be interested to hear of counter-examples.
And of course, I'd expect that the situation could be different in
different countries.)

		--Steve Bellovin
Newsgroups: sci.crypt,alt.security.ripem