Crypto's last stand (Brock Meeks)

   Crypto’s last stand
   FBI wins encryption battle;
   now the real war begins

   Commentary
   
   WASHINGTON— In little more than 24 hours from the time I write
   this, your ability to feel secure in all forms of private
   communication will begin to erode. Forever. Come Wednesday, the House
   Commerce Committee will amend an encryption bill that outlaws any form
   of scrambled message that law enforcement agencies of any stripe are
   unable to immediately decode.
   
   
   It is the first time in history that the U.S. has moved to strip
   Americans of their ability to use non-breakable scrambling devices
   that make their communications secure from prying eyes.
          NO DEBATE, NO COMPROMISE. The feds, the local sheriff and even
   foreign cops will, after this bill is amended, have the ability to
   snoop on your every message without your knowledge — and
   there’s nothing you can do to stop it.
          This heinous move will come about when the Commerce Committee
   adopts an amendment being floated by Reps. Mike Oxley, R-Ohio, and
   Thomas Manton, D-N.Y., that outlaws the use, manufacture, distribution
   or import of any encryption device or product that law enforcement
   agencies cannot immediately decode. It is the first time in history
   that the United States has moved to strip Americans of their ability
   to use non-breakable scrambling devices that make their communications
   secure from prying eyes.
          The Oxley-Manton amendment essentially bastardizes the Security
   and Freedom Through Encryption (SAFE) Act (HR 695). This bill, which
   is expected to become law, had been widely touted by industry and
   civil liberties groups as a “good thing” because it would
   remove current export restrictions on non-breakable encryption devices
   and forbid the government from implementing the very scheme now being
   offered up by Oxley-Manton.
           You see, the FBI contends that if the “bad guys,”
   consistently outlined as “child pornographers, drug traffickers
   and terrorists,” are allowed to get hold of unbreakable
   encryption, then the entire national law enforcement effort, on any
   level, is compromised.
          The argument is bogus. The fact is that strong encryption
   already abounds in the global market and no U.S. law is going to stop
   its use. Criminals certainly won’t use any scrambling program
   stamped “breakable by force of U.S. law.” For that matter,
   no corporation in the global community will be willing to buy
   U.S.-made encryption devices with this built-in trap door. As a
   result, U.S. companies stand to lose billions.
          And despite the FBI argument that “we need it to help
   fight crime,” few cases have ever been hampered by encryption
   programs and no investigation, to date, has ever been completely
   thwarted because of encryption. But the FBI hammers away, its rhetoric
   never changing.
          The sad news is: No one has the political will to stand up to
   the FBI. Despite early overwhelming support for the original SAFE
   bill, those co-sponsors, subject to personal arm-twisting tactics by
   the FBI in “closed-door briefings,” have fled in droves
   and will support the Oxley-Manton amendment. Free choice for crypto is
   dead, or merely on life support if you’re an eternal optimist,
   which, sadly, I am not.
   
   UNCONSTITUTIONAL OVERTONES
   The amendment makes surrender of Fourth and Fifth Amendment rights a
   condition of participation in the information age.
   — JIM DEMPSEY
   Center for Democracy
   and Technology        The changes made by Oxley-Manton result in a
   complete and utter mockery of the Constitution, according to Jim
   Dempsey, a policy analyst for the Center for Democracy and Technology,
   a cyberspace lobbying group in Washington. Dempsey says the amendment
   “makes surrender of Fourth and Fifth Amendment rights a
   condition of participation in the information age.”
          Backing him up is a letter sent to Congress on Tuesday by 28
   law professors from the nation’s top law schools. The letter
   argues that controls on the domestic use of encryption, are “a
   profound mistake” that would “contravene fundamental
   principles of our constitutional tradition.”
          Under current law, even if you use an encryption program that
   stores your coded keys with a “trusted third party”
   — a voluntary arrangement known as “key recovery” or
   “key escrow” — the government still must pony up a
   subpoena to get access to the decoding keys. Under current law, you
   still have a right to challenge the government’s request.
   Oxley-Manton changes all the rules.
          Under the new rules, any encryption software that scrambles a
   message must automatically make an unscrambled version available to
   law enforcement simply upon request! Police no longer even have to
   show “probable cause” for snooping, as they must do with a
   wiretap. And this is all done without your knowledge.
          Dempsey, a former congressional staffer who dealt with law
   enforcement issues, claims that under Oxley-Manton you’re
   compelled to give your information to a third party and it’s
   therefore no longer protected by the Fourth and Fifth Amendments
   — the right against unlawful search and seizure and the right
   not to incriminate yourself. All your communication is treated like
   your bank records, phone records and credit reports, which are all
   obtainable by the police with little effort and legally without your
   knowledge.
          Oddly enough, there are First Amendment concerns here as well,
   because the government is ordering that a piece of software must be
   written in a certain way. Ludicrous! When has the government ever been
   able to dictate what someone can or can’t write, except perhaps
   in time of war. The new law would compel you to “conduct your
   speech in a certain way,” Dempsey says. “Under the First
   Amendment, compelled speech is as bad as compelled silence,” he
   says.
   
   WHO PAYS?
   The direct costs of complying with this government mandate could be
   between $2 million and $2 billion.
   — CONGRESSIONAL BUDGET OFFICE
   Report on Oxley-Mandon Amendment Costs        You can’t put a
   cost on the loss of personal privacy; however, the Congressional
   Budget Office has put a price tag on what it will cost the U.S.
   economy. In a report quietly released Sept. 19, the CBO said the
   “direct costs” of complying with this government mandate
   could be between $2 million and $2 billion. “Most of those costs
   would fall on private firms or individuals,” the report says.
   But who must pay for a government mandate? Good question; no answer.
   Those niggling details will be left to the attorney general to figure
   out after the bill becomes law! Can this piece of legislation get any
   worse? Yes!
          Despite the intended goal of fighting crime, outlawing
   unbreakable encryption might actually create an entire new kind of
   crime: key sniffing or key hacking. The CBO report blandly admits that
   “safeguarding the [decoding] keys would become a security
   concern” and whatever facility stores these decoding keys
   “itself would be a valuable target for criminals.” No, not
   for your little petty messages nor my own twisted rantings, but for
   corporate proprietary information, trade secrets and the like. No
   longer can any corporation feel safe that it can protect its corporate
   life blood, its intellectual property, because all those secrets will
   have decoding keys sitting somewhere, anywhere, just waiting for the
   government-installed trap door to be sprung.
          And of course you’ll have the crypto-rebels, those that
   refuse to use any kind of government-stamped crypto products. These
   crypto-rebels will flaunt their unbreakable coding schemes in every
   corner of the Net. They will be joined by an army of ordinary
   “Netizens” out of solidarity. There will be massive civil
   crypto-disobedience. The FBI will go nuts. They can’t prosecute
   all of them; the Feds don’t have the ability to track down all
   the makers of the unbreakable crypto that will flood in from overseas
   via the Net, and beneath the radar of U.S. law.
          And when FBI Director Louis Freeh writes his memoirs he will
   opine about the bittersweet crypto victory he won in 1997: That he
   succeeded in outlawing non-breakable encryption, while single-handedly
   accomplishing a feat no ranting columnist nor dire warning signals
   from advocacy groups was ever able to pull off: the widespread and
   damn near ubiquitous use of non-breakable crypto.
          And Mr. Freeh, this is a special message just for you:
          mQENAzQh2VwAAAEH /2dBsIVIAB 7fx62yl TAfa2JBgSmy3pLyywtBZ
   j88TY/EcoB5 A7wDKsh53V jqaKM9pL1F 4JQ/dxV F96lhh7QMSm WB1nqa4e/FWld.
          Long live the Rebel Alliance.
          Meeks out...