From: hmiller@lucpul.it.luc.edu (Hugh Miller)
Subject: Re: PKP/RSA comments on PGP legality
Organization: Loyola University Chicago
Date: Tue, 15 Dec 1992 05:29:00 GMT

    Mr. Bidzos gives the appearance of being a very effective lawyer,
representing the interests of his company, RSADSI/PKP, well.
    Consider the post via Carl Ellison.  By not making it under his own
name, but under Carl's headers, he achieves a double purpose.  First, he
veils his threat.  A veiled threat, of course, works better than a naked
one, since it leaves a greater measure of uncertainty in the mind of
potential end-users.  And, after all, that is one of the principal aims
of the posting: to scare off potential end-users of PGP, currently the
world's most popular public-key encryption program.  Second, he presents
the spectacle to the Net of an intimidated potential end-user, to wit,
Carl.  This is also psychologically quite effective, as we in the
Internet community have the tendency to identify with Carl, being like
him.  There has been a rush of postings on alt.security.pgp lately
urging the dropping of PGP for RIPEM.  How very convenient.  Success, so
far.
    The issuance of credible and effective threats constitutes a large part
of the work of a lawyer.  Threats are much less expensive than actual
lawsuits, and less risky (one can lose a lawsuit; one cannot `lose' a
threat).  It is a cardinal rule of actual legal practice that one should
postpone as long as possible going to court over a situation which is
already favorable to you _in re_.  Mr. Bidzos's company makes a modest
income from the (few) licenses it has issued to software developers, and
it wouldn't be prudent, as they say, for him to risk going to court and
subjecting the RSA patent (and his investors' capital) to the glaring
light of a public trial, when he can achieve his ends by intimidation
and innuendo.  But this does not means that we, the readers and targets
of his threats, need to take them at face value.
    Mr. Bidzos claims that we should avoid using PGP because it is
"tainted by serious ITAR violations."  If it has fallen to the likes of
Mr. Bidzos to prosecute PGP developers, distributors, and users under
the ITAR, then the Reagan Revolution's privatization-of-government
schemes have gone farther than we thought.  Mr. Bidzos does _not_ speak
for the federal government, although he may well have been speaking _to_
that government's agents about PGP.  Some branch or other of the federal
government may well be bothered by the existence of PGP, but it would be
unlikely that any prosecution would be mounted by a federal agency
without a prolonged consideration of the political risks this would
involve.  The Feds are still smarting over the Phasorphone and DES
debacles, not to mention NSA's failed attempt to wangle control of
crypto funding from the NSF, and the current bad publicity over the
FBI's "digital telephony" scheme.  I hardly think they would be eager to
climb back into that saddle just yet, knowing the public outcry that
would greet such an attempt.
    As to Mr. Bidzos's claim that by simply posting PGP on a BBS, "you
have exported it," this is laughably absurd.  There are literally
hundreds of "data security" programs floating around the Internet and
the BBS world.  Some employ DES; some their own `miracle' proprietary
schemes.  All are examples of "privacy devices, cryptographic devices
and software (encoding and decoding), and components specifically
designed or modified therefore."  For all the years these little
file-scramblers have been making it into the public domain, Mr. Bidzos
has managed to keep his zeal for the law in check. But ah, all of a
sudden up pops a public-key cryptosystem with source code supplied and
he is filled with patriotic elan.
    Is Mr. Bidzos actually trying to goad the federal government into
launching some kind of major criminal prosecution against everyone who
has had a hand in the development or distribution of PGP?  ITAR statutes
are criminal statutes; if you're convicted under them, you're looking at
hard time in Leavenworth.  Is he seriously advocating prison sentences
for these persons, or for end-users of PGP? Is such a position really in
the best interests of his company, from any standpoint, since he is
actively promoting the same technology himself? If such a prosecution
actually were to go forward, cryptography in general would suffer, and
RSADSI/PKP along with it.
    But what about the protection of the patent rights held by Mr.
Bidzos's company -- which it is his true and only aim to protect, ITAR
burblings being a side issue?  What, then, are we to do, if we wish to
avail ourselves of the powerful assymetric cryptosystems which,
RSADSI/PKP claims, are all covered by their patent?  It appears that we
cannot just go to the library, Xerox up Rivest, Shamir, and Adleman's "A
method for obtaining digital signatures and public key cryptosystems"
(CACM 21(2), 120-6, Feb. 1978), and devote a few hundred hours to
banging up an C implementation.  The RSA algorithm is covered by a
patent, #4,405,829 (issued 20 Sept. 1983).  RSADSI/PKP is the sole
assignee of the patent, held by MIT.  They also have acquired the rights
to three other PK systems and are apparently claiming patent rights to
the very idea of public-key cryptography, which, unless I read the
literature wrong, was first published by Whit Diffie and Martin Hellman
("New directions in cryptography," IEEE Trans. Info. Theory, IT22,
644-54, Nov. 1976).
    Mr. Bidzos advocates adoption of "a program, including source code,
called RSAREF," from RSADSI.  Yet RSAREF is, to my knowledge, not a
complete program, but a set of subroutines which do a specific, limited,
and inflexible number of mathematical operations on given input data.
It is by no means a full program, and it would require a great deal of
work to build it up into one.  (I have never seen any "rsaref" compiled
object code for any machine, any platform; only source code.  And it is
my understanding that we would not even have RSAREF in the public domain
had it not been crowbarred out of RSADSI/PKP by the terms of one of
their federal grants. So RSAREF represents an algorithm for which we, the
taxpayers, have paid _twice_.  Mr. Bidzos claims that it is being
offered for "free.")  Even if one were to build a PK system upon RSAREF,
it would lack much of the flexibility and functionality of PGP, which
utilizes quite different data structures for its keys, key certificates,
keyrings, etc. etc. RIPEM, built upon RSAREF, from the beta version I
have seen (and which I downloaded by anonymous ftp from scss3.cl.msu.edu
two weeks ago, before the ftp archive there was closed to anon-ftp
access), is a slower program with fewer options and much less
functionality than PGP, especially on a non-Unix platform.  It keeps
both the plaintext and encrypted text in memory together, and thus
imposes limitations on many end-users with small memory allocations.
Unlike PGP, it cannot do symmetric (private-key) encryption.  It lacks
the ability to sign public keys.  It relies heavily upon a centralized key
distribution authority (although it can be used without such), which PGP
does not.  For its single-key cipher it utilizes, ahem, DES.  Unlike
PGP, there is no current version for Macintosh and compatible computers.
And the docs for 4.2(beta) indicate that even its own author, Mark
Riordan, is unsure that "the current RSAREF license allows free personal
use of RIPEM by citizens of the United States and Canada."  He _thinks_
it does. "However," he notes, "this personal interpretation has no legal
standing, and RIPEM users are urged to read the RSAREF license agreement
themselves."  And Mr. Bidzos would like us to be reassured by this?
    Mr. Bidzos urges us to avail ourselves of MailSafe, RSADSI's
proprietary end-user package (for Mess-DOS environments).  Apparently
MailSafe is obtainable only by direct mail order from RSADSI.  A call
this morning to the biggest local retailer of PC hardware and software
in Chicago, Elek-Tek, revealed that they had never heard of MailSafe,
and none of their distributors carries it.  The same with CompUSA, in
Skokie.  A call to Egghead Software, one of the biggest national chain
software retail dealerships, revealed that they had never heard of
MailSafe, and none of their distributors carries it.  One could go on
and on.  This is hardly the aggressive marketing one would expect from a
firm with a lock on a patent of critical importance to Americans in the
Information Age.  Albert Einstein worked in a patent office, but it
never occurred to him to patent the theory of special relativity.  If he
had, and had assigned the patent to Bidzos & co., the world's first
cyclotron would still be nothing but drawings in a grant proposal.
    Mr. Bidzos and his co-workers at RSADSI/PKP may feel that, at some
point, they must go to court to protect the patents they claim.  But as
prudent lawyers they must not relish the prospect.  They risk a lot: not
just the patent(s), but the immensely bad publicity they would get from
such an action.  Any victory they would win would be Pyrrhic, given the
immense fund of ill-will towards the issue of algorithmic patents
generally and these ones in particular evident in the computing
community.  The ACM recently adopted a code of ethics which includes
among its "General Moral Imperatives" the stipulations that, "As an ACM
member I will... 1.5 Honor property rights including copyrights and
patents, ... 1.6 Give proper credit for intellectual property."  These
stipulations are already generating heat among ACM members.
(Ironically, "General Moral Imperative" # 1.7 obliges ACM members to
"Respect the privacy of others.")  I cannot believe that RSADSI/PKP
would think it worth their while to pursue a suit like this against a
freeware product produced by a worldwide group of relatively penniless
but widely admired computer professionals.
    In the Information Age, in which we have been living for a long time
now, innovations like PK cryptosystems and David Chaum's untraceable-
transactions techniques will become crucial to the protection of our
rapidly diminishing privacy.  They afford end-users the ability to take
effective control of the security of their communications and of the
availability of information about them, without having to trust to the
benignity of government agencies.  In this new world, they ought to be
freely and widely available.  To bar their use, or the dissemination of
knowledge concerning them, would be to deprive citizens of effective
means of preserving their own privacy.  Privacy means nothing if
effective means to preserve it are lacking.
    Consequently, I for one am not afraid to stand up and be counted as
a supporter of the fine work of the PGP development team, and especially
of Phil Zimmermann, who got the ball rolling with version 1.0.  The
program currently has far more users and admirers than any other
public-key encryption system, and for good reason.  It is an elegant
piece of work, made more elegant with each revision.  Nor am I afraid to
put myself on record as a principled opponent of the RSA patent (and of
algorithm/software patents generally), and as an opponent of the
regulation by the government of cryptographic import/export/use in any
form.  If my doing so creates any legal exposure for me, then that is a
risk I am prepared to take for the sake of the proverbial `eternal
vigilance.'  If it actually ends up costing me or other like-minded
American citizens, then, in my view, this country's Constitution will
have suffered yet another humiliating debasement.

    Hugh Miller
    Department of Philosophy
    Loyola University Chicago
    Moderator, Info-PGP Digest
    info-pgp-request@lucpul.it.luc.edu
-- 
Hugh Miller         | Dept. of Philosophy | Loyola University of Chicago
Voice: 312-508-2727 |  FAX: 312-508-2292  |    hmiller@lucpul.it.luc.edu