If at first you don’t succeed try, try again. It’s a maxim that was
written on the board in my eighth grade Math class. Each week Miss
Minton would write a phrase to encourage us to strive to do our best,
and to this date I still remember most of them. I doubt that Miss Minion
taught any of today’s politicians or government bureaucrats, but they
have been well schooled in that one precept.
The Clinton administration is trying again! They are hell-bent into
running our personal lives and now they want to snoop into our personal
computers. They are circulating a legislative proposal cleverly named ”
Cyberspace Electronic Security Act.”
This proposal would allow federal agents armed with a sealed search
warrant to secretly break into offices and homes for the purpose
of searching computers. They would have the power to obtain any
encryption keys or perform modifications upon the computer to recover
and read all files. While they give grudging acknowledgment to the
necessity for a search warrant, the sealing of the search warrant
effectively keeps the “suspect” from knowing what he is suspected of and
responding to the allegations.
Thus the government gets to ignore any requirement to give the
“suspect” notice of their search and seizure. The Department of Justice
(DOJ) asserted that their plan was constitutionally consistent, but was
needed to deal with “criminal activity, such as drug trafficking,
terrorism, white-collar crime, and the distribution of child
pornography,” according to the
Washington
Post,
quoting from a DOJ memo.
This is not the first time — and I guarantee you it won’t be the
last — that the DOJ has invoked “the children” as the reason for
trampling on the Bill of Rights. Several years ago they were advocating
encryption-key escrow technology known as the Clipper Chip in order to
increase surveillance on phone calls. After prolonged outcries from
consumers, the computer industry, and privacy groups that effort was
abandoned. Again trying for more power, FBI Director Louis Freeh
testified at a 1997 Senate hearing on Internet child predators, “It
would be beneficial for Internet service providers to capture and retain
Caller ID data on persons accessing ISP lines. The capturing of Caller
ID data will greatly assist law enforcement in child pornography/child
sexual exploitation investigations.”
Only three weeks ago I wrote about
Federal Intrusion Detection
Network
(FIDNET),
the administration’s computer surveillance proposal that elicited wrath
from both civil libertarians and the computer community. One wonders how
many different surveillance plans the DOJ is working on to further its
effort to monitor and control electronic communications. It’s obvious
that the Cyberspace Electronic Security Act has been in the works for
several months and its appearance is not a reaction to the public outcry
against FIDNET. It’s just a new way of attempting to reach the same
goal. DOJ has not yet succeeded in getting into our computers, but it
keeps on trying and trying, even when the courts rule against it.
On May 6, 1997, the Ninth Circuit Court ruled against the government
in an encryption case that received little media attention, but has
tremendous civil liberties ramifications. The case is ”
Bernstein v.
US Dept. of Justice” and it began
over 7 years ago. Daniel J. Bernstein, then a graduate student in
Mathematics at the University of California at Berkeley, sent a letter
to the State Department on June 30, 1992, inquiring whether a paper on
encryption, entitled “The Snuffle Encryption System” and the source code
for the encryption and decryption of Snuffle required a license to
publish on the Internet. After two months he received an answer
affirming that indeed a license was necessary. After Bernstein attempted
several times without success to discuss the matter with the State
Department and the National Security Agency, he appealed the ruling on
Sept. 22, 1993. His appeal was ignored even though under law a response
is required within 30 days. Thus Bernstein and the Electronic Frontier
Foundation joined forces and filed a lawsuit on Feb. 21, 1995.
Bernstein challenged the U.S. export-control scheme as an
“impermissible prior restraint on speech, in violation of the First
Amendment.” He went on to charge that software and its documentation are
publications and therefore fall under the First Amendment protection
just like books, movies, or telephone conversations; and that using the
export-control laws to prohibit the publication of such information
concerning cryptology violates the constitutional rights of the author.
In addition, he claimed that the restriction on information concerning
cryptology denies another constitutionally protected interest —
privacy.
The government, of course, moved to dismiss the case for lack of
jurisdiction, but Judge Marilyn Hall Patel held that source code was
speech, was protected by the First Amendment and the court did, indeed,
have jurisdiction. Bernstein, now a professor, filed a motion for an
injunction in order to post materials on a website for his 1997
cryptology course. The court held on Dec. 6, 1996, that the export
control laws on encryption were an unconstitutional prior restraint on
speech and allowed him to electronically publish his software for his
class while the rest of the case was being decided.
The final ruling on Aug. 25, 1997, stated that the federal
government’s restrictions over cryptographic “software and related
devices and technology are in violation of the First Amendment on the
grounds of prior restraint.” Judge Patel granted an injunction to
Bernstein forbidding any further prosecution by the government for
publication of his Snuffle program or any of his other encryption
programs.
It took only three days for the government to be back in court filing
an emergency motion. Judge Patel granted a partial stay, putting most of
the injunction on hold until the Ninth Circuit Court of Appeals reviewed
Bernstein’s case. She, however, left the part of the injunction remain
in effect that allowed Bernstein to publish his Snuffle 5.0 on the
Internet without the fear of federal prosecution.
On Sept.19, 1997, the government appealed even the partial stay and
argued that Bernstein’s publication of Snuffle 5.0 would be so injurious
to national security that a complete stay of Judge Patel’s ruling was
required. Two weeks later the Ninth Circuit Court of Appeals granted the
government’s stay and set an expedited hearing date of Dec. 8, 1997.
On May 6, 1999, a year and a half after the hearing, the Circuit
Court handed down a 2-1 decision upholding Judge Patel’s original
ruling. The decision written by Judge B. Fletcher stated that indeed
under the First Amendment it is unconstitutional prior restraint to
restrict the electronic publication of cryptological information and its
code.
That ruling should have resolved the issue. But no, the government
keeps trying. The May 6 press release from the DOJ made certain to
inform everyone “the regulations controlling the export of encryption
products currently remain in full effect.” The Bureau of Export
Administration issued a similarly worded statement. No one was surprised
that on June 21, 1999, the U.S. government sought further review by the
Ninth Circuit Court alleging that the court should have rewritten the
regulations to make them constitutional.
The government obviously has not succeeded, so it will try again, and
again, and again, using our tax dollars. While all of us who value our
liberties will have to stop them from succeeding again, and again, and
again with our after-tax dollars. I remember another of Miss Minton’s
maxims: “good, better, best; never let it rest; until your good is
better; and your better best.” It is indeed unfortunate that government
knows how to try and try again, but as it keeps trying, nothing gets
better — only worse.
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