Computer underground Digest Tue Dec 24, 1996 Volume 8 : Issue 92
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.92 (Tue, Dec 24, 1996)
File 1--Strong crypto can be exported, says judge, at least in SF (fwd)
File 2--From EFF - Court Declares Crypto Restrictions Unconstitutional
File 3--CWD-Cooking with Crypto
File 4--Re: Strong crypto can be exported, says judge, at least in SF
File 5--Cu Digest Header Info (unchanged since 13 Dec, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Thu, 19 Dec 1996 08:04:34 -0800 (PST)
From: Declan McCullagh <declan@well.com>
Subject: File 1--Strong crypto can be exported, says judge, at least in SF (fwd)
Source fight-censorship@vorlon.mit.edu
Date--Wed, 18 Dec 1996 23:44:59 -0500
From--Dave Banisar <banisar@epic.org>
Headline: Encryption Restriction Nixed
Wire Service: APO (AP Online)
Date: Wed, Dec 18, 1996
By BOB EGELKO
Associated Press Writer
SAN FRANCISCO (AP) -- The State Department's refusal to let a
mathematician post his encryption programs on the Internet was
unconstitutional, a federal judge said. The ruling announced Wednesday was
hailed by computer industry executives who say the export restrictions
have allowed the rest of the world to take business away from U.S.
companies.
U.S. District Judge Marilyn Hall Patel stopped short of forbidding all
restrictions on the export of codes that allow computer messages to be
scrambled. But she said the current rules, which treat such computer
programs as if they were military weapons, go too far.
The immediate effect of Monday's ruling is that anyone in the federal
district that includes San Francisco and Silicon Valley can post the
forbidden cryptography on the Internet, said Mike Godwin, a lawyer for the
Electronic Frontier Foundation, an online civil rights group.
<snip>
------------------------------
Date: Fri, 20 Dec 1996 04:30:34 -0800 (PST)
From: Stanton McCandlish <mech@EFF.ORG>
Subject: File 2--From EFF - Court Declares Crypto Restrictions Unconstitutional
EFFector Online Volume 09 No. 15 Dec. 20, 1996 editors@eff.org
* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more
COURT DECLARES CRYPTO RESTRICTIONS UNCONSTITUTIONAL
Free Speech Trumps Clinton Wiretap Plan
December 19, 1996, 16:50 Pacific time.
Electronic Frontier Foundation Contacts:
Shari Steele, Staff Attorney
301/375-8856, ssteele@eff.org
John Gilmore, Founding Board Member
415/221-6524, gnu@toad.com
Cindy Cohn, McGlashan & Sarrail
415/341-2585, cindy@mcglashan.com
San Francisco - On Monday, Judge Marilyn Hall Patel struck down Cold War
export restrictions on the privacy technology called cryptography. Her
decision knocks out a major part of the Clinton Administration's
effort to force companies to build "wiretap-ready" computers,
set-top boxes, telephones, and consumer electronics.
The decision is a victory for free speech, academic freedom, and the
prevention of crime. American scientists and engineers will now be
free to collaborate with their peers in the United States and in other
countries. This will enable them to build a new generation of tools
for protecting the privacy and security of communications.
The Clinton Administration has been using the export restrictions to goad
companies into building wiretap-ready "key recovery" technology. In a
November Executive Order, President Clinton offered limited
administrative exemptions from these restrictions to companies which
agree to undermine the privacy of their customers. Federal District
Judge Patel's ruling knocks both the carrot and the stick out of
Clinton's hand, because the restrictions were unconstitutional in the
first place.
The Cold War law and regulations at issue in the case prevented
American researchers and companies from exporting cryptographic
software and hardware. Export is normally thought of as the physical
carrying of an object across a national border. However, the
regulations define "export" to include simple publication in the U.S.,
as well as discussions with foreigners inside the U.S. They also define
"software" to include printed English-language descriptions and
diagrams, as well as the traditional machine-readable object code and
human-readable source code.
The secretive National Security Agency has built up an arcane web of
complex and confusing laws, regulations, standards, and secret
interpretations for years. These are used to force, persuade, or
confuse individuals, companies, and government departments into making
it easy for NSA to wiretap and decode all kinds of communications.
Their tendrils reach deep into the White House, into numerous Federal
agencies, and into the Congressional Intelligence Committees. In
recent years this web is unraveling in the face of increasing
visibility, vocal public disagreement with the spy agency's goals,
commercial and political pressure, and judicial scrutiny.
Civil libertarians have long argued that encryption should be widely
deployed on the Internet and throughout society to protect privacy,
prove the authenticity of transactions, and improve computer security.
Industry has argued that the restrictions hobble them in building
secure products, both for U.S. and worldwide use, risking America's
current dominant position in computer technology. Government
officials in the FBI and NSA argue that the technology is too
dangerous to permit citizens to use it, because it provides privacy to
criminals as well as ordinary citizens.
"We're pleased that Judge Patel understands that our national security
requires protecting our basic rights of free speech and privacy," said
John Gilmore, co-founder of the Electronic Frontier Foundation, which
backed the suit. "There's no sense in 'burning the Constitution in
order to save it'. The secretive bureaucrats who have restricted these
rights for decades in the name of national security must come to a
larger understanding of how to support and preserve our democracy."
Reactions to the decision
"This is a positive sign in the crypto wars -- the first rational
statement concerning crypto policy to come out of any part of the
government," said Jim Bidzos, President of RSA Data Security, one of
the companies most affected by crypto policy.
"It's nice to see that the executive branch does not get to decide
whether we have the right of free speech," said Philip Zimmermann,
Chairman of PGP, Inc. "It shows that my own common sense
interpretation of the constitution was correct five years ago when I
thought it was safe to publish my own software, PGP. If only US
Customs had seen it that way." Mr. Zimmermann is a civil libertarian
who was investigated by the government under these laws when he wrote
and gave away a program for protecting the privacy of e-mail. His
"Pretty Good Privacy" program is used by human rights activists
worldwide to protect their workers and informants from torture and
murder by their own countries' secret police.
"Judge Patel's decision furthers our efforts to enable secure electronic
commerce," said Asim Abdullah, executive director of CommerceNet.
Jerry Berman, Executive Director of the Center for Democracy and
Technology, a Washington-based Internet advocacy group, hailed the
victory. "The Bernstein ruling illustrates that the Administration
continues to embrace an encryption policy that is not only unwise, but
also unconstitutional. We congratulate Dan Bernstein, the Electronic
Frontier Foundation, and all of the supporters who made this victory
for free speech and privacy on the Internet possible."
"The ability to publish is required in any vibrant academic discipline,"
This ruling re-affirming our obvious academic right will help American
researchers publish without worrying," said Bruce Schneier, author of
the popular textbook _Applied Cryptography_, and a director of the
International Association for Cryptologic Research, a professional
organization of cryptographers.
Kevin McCurley, President of the International Association for
Cryptologic Research, said, "Basic research to further the
understanding of fundamental notions in information should be welcomed
by our society. The expression of such work is closely related to one
of the fundamental values of our society, namely freedom of speech."
Background on the case
The plaintiff in the case, Daniel J. Bernstein, Research Assistant
Professor at the University of Illinois at Chicago, developed an
"encryption algorithm" (a recipe or set of instructions) that he
wanted to publish in printed journals as well as on the Internet.
Bernstein sued the government, claiming that the government's
requirements that he register as an arms dealer and seek government
permission before publication was a violation of his First Amendment
right of free speech. This is required by the Arms Export Control Act
(AECA) and its implementing regulations, the International Traffic in Arms
Regulations (ITAR).
In the first phase of this litigation, the government argued that
since Bernstein's ideas were expressed, in part, in computer language
(source code), they were not protected by the First Amendment. On
April 15, 1996, Judge Patel rejected that argument and held for the
first time that computer source code is protected speech for purposes
of the First Amendment.
Details of Monday's Decision
Judge Patel ruled that the Arms Export Control Act is a prior restraint
on speech, because it requires Bernstein to apply for and obtain from
the government a license to publish his ideas. Using the Pentagon
Papers case as precedent, she ruled that the government's "interest of
national security alone does not justify a prior restraint."
Judge Patel also held that the government's required licensing
procedure fails to provide adequate procedural safeguards. When the
Government acts legally to suppress protected speech, it must reduce
the chance of illegal censorship by the bureaucrats involved -- in this
case, the State Department's Office of Defense Trade Controls (ODTC).
Her decision states: "Because the ITAR licensing scheme fails to provide
for a time limit on the licensing decision, for prompt judicial review
and for a duty on the part of the ODTC to go to court and defend a
denial of a license, the ITAR licensing scheme as applied to Category
XIII(b) [i.e., as applied to encryption material] acts as an
unconstitutional prior restraint in violation of the First Amendment."
Professor Bernstein is now free to publish his ideas without asking the
government's permission first.
She also ruled that the export controls restrict speech based on the
content of the speech, not for any other reason. "Category XIII(b) is
directed very specifically at applied scientific research and speech on
the topic of encryption." The Government had argued that it restricts
the speech because of its function, not its content.
The judge also found that the ITAR is vague, because it does not
adequately define how information that is available to the public
"through fundamental research in science and engineering" is exempt
from the export restrictions. "This subsection ... does not give
people ... a reasonable opportunity to know what is prohibited." The
failure to precisely define what objects and actions are being
regulated creates confusion and a chilling effect. Bernstein has been
unable to publish his encryption algorithm for over four years. Many
other cryptographers and ordinary programmers have also been restrained
from publishing because of the vagueness of the ITAR. Brian
Behlendorf, a maintainer of the popular public domain "Apache" web
server program, stated, "No cryptographic source code was ever
distributed by the Apache project. Despite this, the Apache server
code was deemed by the NSA to violate the ITAR." Judge Patel also
adopted a narrower definition of the term "defense article" in order to
save it from unconstitutional vagueness.
The immediate effect of this decision is that Bernstein now is free to
teach his January 13th cryptography class in his usual way. He can
post his class materials on the Internet, and discuss the upcoming
class's materials with other professors, without being held in
violation of the ITAR. "I'm very pleased," Bernstein said. "Now I
won't have to tell my students to burn their notebooks."
It is presently unclear exactly where Judge Patel's decision applies --
in the Northern District of California (containing San Francisco and Silicon
Valley) or throughout the country. Check with your own lawyer if
you contemplate taking action based on the decision.
It is not yet clear from the decision whether the export controls on
object code (the executable form of computer programs which source
code is automatically translated into) have been overturned. It may
be that existing export controls will continue to apply to runnable
software products, such as Netscape's broswer, until another court
case challenges that part of the restrictions.
ABOUT THE ATTORNEYS
Lead counsel on the case is Cindy Cohn of the San Mateo law firm of
McGlashan & Sarrail, who is offering her services pro bono. Major
additional pro bono legal assistance is being provided by Lee Tien of
Berkeley; M. Edward Ross of the San Francisco law firm of Steefel,
Levitt & Weiss; James Wheaton and Elizabeth Pritzker of the First
Amendment Project in Oakland; and Robert Corn-Revere, Julia Kogan,
and Jeremy Miller of the Washington, DC, law firm of Hogan & Hartson.
ABOUT THE ELECTRONIC FRONTIER FOUNDATION
The Electronic Frontier Foundation (EFF) is a nonprofit civil
liberties organization working in the public interest to protect
privacy, free expression, and access to online resources and
information. EFF is a primary sponsor of the Bernstein case. EFF
helped to find Bernstein pro bono counsel, is a member of the
Bernstein legal team, and helped collect members of the academic
community and computer industry to support this case.
Full text of the lawsuit and other paperwork filed in the case is
available from EFF's online archives at:
http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/
The full text of Monday's decision is available at:
http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/961206.decision
------------------------------
Date: Fri, 20 Dec 1996 07:53:01 -0800 (PST)
From: "Brock N. Meeks" <brock@well.com>
Subject: File 3--CWD-Cooking with Crypto
CyberWire Dispatch // Copyright (c) 1996 // December 20
Jacking in from the "Two Flew Over the Crypto Nest" port:
Washington -- The encryption issue continues to bubble up all
over the boneyard of D.C. On Thursday, in the wake of the U.S.
District Court decision in San Francisco, that declared current
U.S. restrictions on exporting *printed* crypto code violates
First Amendment rights, crypto came to the fore, if only briefly.
The following instances, one during a congressional hearing, the
other during a news conference by U.S. Attorney General Janet
"Say Hallelujah, I've Saved My Job" Reno, point out the widening
rift between congress and the Administration over the encryption
issue.
During a hearing to discuss the FBI's handling of the bombing in
Centinneal Park in Atlanta during the summer Olympics, Sen. Arlan
Spector (R-Pa.) couldn't resist tossing a dart at FBI Dir. Louis
Freeh when he said:
"And the very last thing is: I know the federal court decision
which came down -- on export restrictions on certain encryption
software --yesterday is not one you may have had a chance to
review. But, Director Freeh, with my concern on what I have
thought has been a misguided policy by the administration on
their export restriction encryption policy, it's probably safe to
assume that you and I may have a chance to discuss this latest
court case, and whether it goes up on appeal, or whether we try
one more time on some -- on a legislative fix."
Freeh did not respond to Spector's question. But Spector's
comments are important on two fronts. One, he comes out as vocal
opponent of the Administration's policy, calling it "misguided"
and signalling that it's likely he will ally himself with Sen.
Conrad Burns (R-Mont.) to resurrect pro-encryption legislation
during the 105th Congress.
Spector is clearly dialed into the issue; good news for a
Congress that has, with a few notable exceptions, essentially
been brain dead on this issue and completely spun by the
fictitious horror stories that the FBI's Freeh takes every
opportunity tell on Capitol Hill.
Sadly, the nation's top cop, Janet Reno, appears to be hopelessly
lost on the crypto issue. During her weekly news conference,
she was asked about the court decision and "why does the
government feel that it's so important to place those
restrictions on that type of technology, and will you appeal this
decision?"
Reno punted on the latter question, saying she hadn't seen the
opinion. On the meat of the question, she simply muddled
through. She emphasized wiretaps and how encrypting real time
conversations can be a threat to law enforcement investigations.
The problem, according to Reno, is this: "What we're faced with
now is that there is the developing capacity -- and it will
become more so --the power to encrypt or to code a system so that
it cannot be intercepted through new high-tech systems."
To counter this threat, Reno said, "We have got to have the
capacity to intercept that." This has always, from day one of
this crypto debate, been the real jones of the FBI: Real time
interception and decryption of voice communications. Stored
data and Email make up the FBI's crypto hat trick, but it's the
wiretapping and decryption of coded voice communications that
really gives the FBI a hard on.
Reno short-hopped a common meme among civil libertarians, that
being the notion that the FBI is simply looking to expand its
current wiretap authority. Remember, Freeh has been dogged in
saying that the Bureau is not looking to expand its authority,
but simply maintain the status quo.
Reno answered this "expansion" theory, saying: "What's expanding
is not our authority, really, but the technology that permits
such tremendous communication systems in the world. And what
we've got to be prepared to do is to have a system that will
permit us to get a court order, just as we do now for simple
telephones, to intercept the communication and, if it is
encrypted or coded, to decode it."
Now... don't we all feel better? It's not "really" an expansion
of authority. Nope, just an expansion of the technological law
enforcement capacity. It's typical cheapjack bureaucratic
Washington bullshit.
Reno is convinced that people will "appreciate" the FBI's
capability to do this and then tells this story: "A businessman
says, 'Well, I don't want you messing with my business,' but if
his competitor comes in and steals trade secrets and stores that
in a coded computer, he's not going to like it if the FBI doesn't
have the capacity to get a lawful search warrant and search that
computer because they can't decode it."
However, as Reno's own leutinent, Jamie Gorelick, admitted before
a congressional panel earlier this year: If the FBI can't crack
a code, it has, in the past, called on the "technical
assistantance" of the National Security Agency, the nation's top
spooks and the world's best equipped code crackers.
As for the ban on crypto exports? "We're going to continue to
work with everyone," Reno said, "because I think as people work
through this issue, they understand that it is in everybody's
best interest to be able to do it."
Well, apparently Reno hasn't been in the loop on the industry's
about face on this issue lately. Where only a few months ago
the computer and software industry seemed to have turned into
White House lap dogs by voicing initial approval of the new
crypto initiatives put forth by the President via executive
order, now that industry has revolted. Industry now claims that
the Administration essentially kicked them in the balls, the term
"bait and switch" has been used.
Surprise, surprise. Industry got what it deserved for being cozy
with an Administration famous for having blinders on when it
comes to this issue. Now industry feels hurt and dismayed.
Excuse me if I can't gin up any sympathy for these guys... what
the fuck were they thinking in the first place?
As Spector and Reno's comments show, this issue isn't likely to
die a slow quiet death in the coming years. Indeed, it looks
like battle lines are being drawn already; a kind of digital
line in cyberspace.
Who will win? Don't bet on the FBI... even their own turncoat
spies aren't clever enough to encrypt their self-incriminating
files. So, Mr. Freeh, tell me again why you need the keys to my
encrypted messages? Even your own troops let you walk right
through the digital front door.
Meeks out...
------------------------------
Date: Thu, 19 Dec 1996 19:43:34 -0800
From: "James S. Tyre" <j.s.tyre@worldnet.att.net>
Subject: File 4--Re: Strong crypto can be exported, says judge, at least in SF
Source - fight-censorship@vorlon.mit.edu
My congratulations to Professor Bernstein, his lawyers, the EFF and all
who contributed to the side of the angels.
I do have two nits to pick, however (one not so small), with the
publicity surrounding Judge Patel's decision. The first is stated twice
in Declan's post, although later clarified in his post. The second has
not been stated in anything which I have read in the last day or so.
First, many articles have said that Judge Patel's decision is NOT
binding on courts outside of the United States District Court for the
Northern District of California (roughly, the San Francisco bay area).
True enough, but most have said that it IS binding within the Northern
District. Not true. The U.S. District Court, like the Superior Courts
in most states (New York being the notable exception) is a general
jurisdiction trial court, not an appellate court. Judge Patel's
decision, insofar as other courts are concerned, has no binding effect
at all. Another trial court judge within the Northern District could
just as easily rule another way as could a federal trial judge in
Wisconsin or D.C. Declan's post gets to this point well into the text,
but only after contradictory statements earlier in the post.
My second nit, however, is more important. In EFF's release included in
Declan's post, it is said that: "American scientists and engineers will
now be _free_ to collaborate with their peers in the United States and
in other countries. This will enable them to build a new generation of
tools for protecting the privacy and security of communications." (My
emphasis on "free".) Judge Patel did NOT rule that Prof. Bernstein
could "freely" distribute his source code. Instead, she ruled that the
export restrictions were an unconstitutional prior restraint on speech
(having previously ruled that source code indeed is speech). This is
not a mere semantic distinction, but a significant, substantive one. As
Judge Patel wrote in her decision:
> It is axiomatic that the First Amendment is more tolerant of
> subsequent criminal punishment of speech than it is of prior restraints
> on the same speech.
>
> The thread running through all these cases is that prior
> restraints on speech and publication are the most serious and
> the least tolerable infringement on First Amendment rights. A
> criminal penalty or a judgment in a defamation case is subject
> to the whole panoply of protections afforded by deferring the
> impact of the judgment until all avenues of appellate review
> have been exhausted. . . .
>
> A prior restraint, by contrast and by definition, has an
> immediate and irreversible sanction. If it can be said that a
> threat of criminal or civil sanction after publication "chills"
> speech, prior restraint "freezes" it at least for the time.
>
> Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (196).
>
In other words: a government prosecutor or a defamation plaintiff has to
make a much stronger showing to prevent speech from happening in the
first instance (a prior restraint) than to impose liability for the
speech after the fact. Judge Patel ruled that Bernstein could not be
restrained in advance from speaking his source code. She did not rule,
however, that that he cannot be prosecuted after the fact if, as and
when he does speak his code. Specifically, near the end of her
decision, Judge patel wrote that:
> The court notes that an injunction appears hasty given the relative
> positions of the parties. The government seems to suggest that teaching
> a class on cryptography, regardless of the nationality of the students,
> is not the problem; the concern is with posting material on the Internet
> without limiting access. Assuming the government is sincere about its
> limited objections and that plaintiff could easily limit access to the
> class material he posts so that it is not available internationally, it
> is not clear why the parties could not enter into a stipulation.
>
> In view of the fact that the court has ruled on the merits and
> has found certain provisions of the ITAR invalid, plaintiff cannot be
> prosecuted _under those provisions_ absent reversal on appeal.
> Therefore, at this time there is no immediate threat of injury and no
> need to rule on the preliminary injunction.[15] The motion for a
> preliminary injunction is denied without prejudice. If plaintiff is
> threatened with prosecution, he may return to this court and renew the
> motion.
(My emphasis on "under those provisions.")
Like any good judge, Judge Patel did not speculate on whether Bernstein
could be prosecuted under existing laws other than the specific ITAR
provisions held to be invalid, if and when he puts his code on the net.
Nor did she write that the mere fact that source code is speech would
prevent Congress from enacting new laws seeking to punish
crypto-speech. Are there existing laws, other than the invalid ITAR
provisions, under which Bernstein theoretically could be prosecuted if
he speaks his code on the net? I believe so. Could Congress enact such
laws? Certainly. Would such laws be constitutional as applied to this
type of a case? I won't speculate any more than did Judge Patel.
I truly HATE to use OJ I and II and as an analogy for anything, but,
unfortunately, the analogy is useful here. Because the burden of proof
is so much higher in criminal cases than in civil cases, OJ's acquittal
in the criminal case does not prevent the families from suing for
wrongful death. Because the government has a higher burden when it
attempts to stop speech before it happens than when it attempts to
impose liability afterward, Judge Patel's ruling, even if upheld on
appeal, does NOT mean that Bernstein or others can speak freely, without
fear of consequence. That may turn out to be the case, but that was not
decided in this case.
None of this is intended to diminish Professor Bernstein's victory. Far
from it. But let's understand what was decided and what was not. This
certainly was a skirmish, and may be a good battle, but its not close to
being the war.
Or so I think.
Jim Tyre
------------------------------
Date: Thu, 15 Dec 1996 22:51:01 CST
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End of Computer Underground Digest #8.92
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