From: cme@ellisun.sw.stratus.com (Carl Ellison)
Newsgroups: sci.crypt,alt.security.pgp
Subject: PKP/RSA comments on PGP legality
Date: 11 Dec 92 18:16:23 GMT
Organization: Stratus Computer, Software Engineering
NNTP-Posting-Host: ellisun.sw.stratus.com

I went to the horse's mouth and asked some folks at PKP & RSA to comment
on PGP legality.  Here's their reply.  I have permission to post it.

This was inspired by my original question, to them, whether I could buy
an individual license to permit me to use PGP.  [I have since concluded
that I would like to get a copy of the PGP interface spec so that I could
write a program, using RSAREF, which interoperates with PGP.  I see PGP
as setting a kind of new standard format -- an alternative to PEM.]

So -- on to the reply from PKP (much from a lawyer there) and RSA:


- - -----------------------------------------------------

Risks of using pgp

One should be careful about assuming that the documentation in
electronically distributed software is accurate, especially where
law is concerned.  

There is much that the documentation for pgp does not tell you about
patent and export law that you should be aware of.  Some of the
statements and interpretations of patent and export law are simply
false. This note will attempt to offer some clarification and accurate
information.

pgp seems to be an attempt to mislead netters into joining an
illegal activity that violates patent and export law, letting them
believe that they run no serious risk in doing so.  

PATENTS

Patent law prohibits anyone from making, using, or selling a device
that practices methods described in a U.S. patent.  pgp admits
practicing methods described in US patent #4,405,829, issued to the
Massachusetts Institute of Technology, and licensed by Public Key
Partners.

Those who send signed or encrypted messages, post the pgp program, 
or encourage others to do so are inducing infringement. Under 
patent law, there is no distinction between inducement to infringe and 
direct infringement. You are just as liable.  

Being aware of the RSA patent makes infringement willful and
deliberate. Under patent law, a patent holder is entitled to seek
triple damages and legal fees from deliberate infringers.  While the
pgp documentation suggests you that you probably won't get sued, it
doesn't tell you what can happen when patent holders assert their
rights against infringement.

Free and legal RSA software is available. RSA Data Security has
released a program, including source code, called RSAREF. This program
is available free to any U.S. person for non-commercial use.
Applications may be built on RSAREF and freely distributed, subject to
export law.  An application that provides email privacy, based on
RSAREF, which uses the RSA and DES algorithms, called RIPEM is an
example. For information, send email to rsaref-info@rsa.com or
rsaref-users@rsa.com.  

NOTE: The pgp documentation states that PKP acquired the patent rights
to RSA "... which was developed with your tax dollars..." This is very
misleading.  U.S. tax dollars only partially funded researchers at MIT
who developed RSA. The U.S. government itself received royalty-free
use in return.  This is standard practice whenever the government
provides financial assistance.  The patents on public-key are no
different and were handled no differently than any others developed at
universities with partial government funding. In fact, almost every
patent granted to a major university includes government support,
returns royalty-free rights to the government, and is then licensed
commercially by the universities to private parties.

EXPORT LAW

pgp leads users to believe that it has circumvented export controls
when it says "...there are no import restrictions on bringing
cryptographic technology into the USA."  You are led to believe that
since you didn't import it, it's legal for you to use it in the US.
The "no import restrictions" claim has been made so many times, many
people probably believe it.

One would be well advised not to accept this legal opinion.  While
stated as if it were a well-known fact, the claim that "there are no
import restrictions" is simply false.  Section 123.2 of the ITAR
(International Traffic in Arms Regulations) reads:
 
"123.2 Imports. No defense article may be imported into the United
States unless (a) it was previously exported temporarily under a
license issued by the Office of Munitions Control; or (b) it
constitutes a temporary import/intransit shipment licensed under
Section 123.3; or (c) its import is authorized by the Department of
the Treasury (see 27 CFR parts 47, 178, and 179)."

Was pgp illegally exported? Was pgp illegally imported?  Of course.
It didn't export or import itself.  pgp 1 was illegally exported from
the U.S., and pgp 2, based on pgp 1, is illegally imported into the
U.S.  Is a license required? According to the ITAR, it is.  ITAR
Section 125.2, "Exports of unclassified technical data," paragraph (c)
reads:

"(c) Disclosures. Unless otherwise expressly exempted in this
subchapter, a license is required for the oral, visual, or documentary
disclosure of technical data...  A license is required regardless of
the manner in which the technical data is transmitted (e.g., in
person, by telephone, correspondence, electronic means, telex, etc.)."
                
What is "export?" Section 120.10, "Export," begins:

"'Export' means, for purposes of this subchapter: ...(c) Sending or
taking technical data outside of the United States in any manner
except that by mere travel outside of the United States by a person
whose technical knowledge includes technical data; or..."

Is pgp subject to the ITAR? See Part 121, the Munitions List, in
particular Category XIII, of which paragraph (b) reads, in part,
"...privacy devices, cryptographic devices and software (encoding and
decoding), and components specifically designed or modified
therefore,..."

A further definition in 121.8, paragraph (f) reads: "Software 
includes but is not limited to the system functional design, 
logic flow, algorithms, application programs, ..."

pgp encourages you to post it on computer bulletin boards.  Anybody
who considers following this advice is taking quite a risk.  When you
make a defense item available on a BBS, you have exported it.

pgp's obvious attempts to downplay any risk of violating export law
won't help you a bit if you're ever charged under the ITAR.

Penalties under the ITARs are quite serious.  The ITARs were clearly
designed to put teeth into laws that make exporting munitions illegal.
It's unfortunate that cryptography is on the munitions list. But it
is.  pgp is software tainted by serious ITAR violations.

These points on patent and export law are straightforward and can
easily be confirmed with legal advice. However, there are other
statements in the pgp documentation that should not go unchallenged.

In pgp 2.0, the author says, "I did not steal any software from PKP."
(PKP is the patent holder for the RSA patent.)  Of course not; PKP
doesn't make any software. However, not mentioned is a software
product by RSA Data Security called MailSafe.  This product was first
shipped in July of 1986.  Features such as a digital signatures on the
program itself for verification, internal self-check for virus
detection, compression of plaintext and ASCII recoding of encrypted
binary files, direct and extended trust of public keys through
certification, including the publisher's public key in the
distribution, display of a message digest, security and password
advice, and many others are in MailSafe and are carefully documented
in the user manual.  The authors of pgp have had a copy of MailSafe
and the user manual since 1987.

There may be nothing illegal about using ideas from another product,
but there's something dishonest about misleading people into believing 
these ideas were your own in the interest of recruiting "fans."

pgp calls itself "public-key for the masses." Even this isn't
original.  The September 12, 1986 issue of the Christian Science
Monitor contains a page one story on cryptography, and discusses
MailSafe. In that story, an RSA spokesman is quoted as saying
"MailSafe is public-key for the masses." Reprints of this story were
widely circulated in RSA press kits, and received by the pgp authors
in 1987.

The documentation to pgp would have readers believe that pgp was the
result of a noble desire to save everyone from an evil government
threatening to deny rights to privacy; that users and distributors of
pgp have little or nothing to fear from the patent holders, who, it is
implied, are probably dishonest anyway; and that one shouldn't be
concerned about export controls because pgp beat the system for
everyone by having been developed overseas and imported legally.  The
facts simply don't support these claims.


- - -----------------------------------------------------

-- 
-- <<Disclaimer: All opinions expressed are my own, of course.>>
-- Carl Ellison						cme@sw.stratus.com
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