Thu, 30 Sep 1999 08:19:18 -0700

Matthew Gaylor, <>, writes:
> Now, suddenly, the government is agreeing to relax those
> restrictions. That's a surprise: this is hands-down the most fascist
> administration in American history. "Liberal" Bill Clinton has
> transformed America into a police state in which anybody with a badge
> can do anything, anytime, to anybody who lacks one - even break into
> their houses and shoot them in the back with no comebacks. The only
> freedom Bill Clinton will ever permit to increase is the freedom of
> politicians and their armed myrmidons to plunder, rape, and
> slaughter.

I disagree with this characterization, but I don't want to be drawn into such a discussion.

> So why the turnaround?

Looking at it realistically, politicians are beholden to a variety of interest groups. Among the groups which have been activelly lobbying the government for crypto relaxation are the silicon valley technology companies. These are some of the fastest growing and wealthiest organizations in the country and have increasing political clout. Relaxation of crypto exports has become something of a test issue to see whether their monetary strength can translate into political influence.

> WIRED News ("Decoding the Crypto Policy Change" by Declan McCullagh
> <> flips us a
> big clue: "Another answer might lie in a little-noticed section of
> the legislation the White House has sent to Congress. It says that
> during civil cases or criminal prosecutions, the Feds can use
> decrypted evidence in court without revealing how they descrambled
> it."

In the discussion about this provision on the crypto lists, questions have been raised about the constitutionality of such a provision. The sixth amendment explicitly states that the accused has the right to be confronted with the witnesses against him. For the government to provide evidence without the accused having any chance to dispute or even be aware of the manner in which it was gathered is extremely questionable.

> It goes without saying the Republicans will pass this one: if Slick
> introduced a bill banning the GOP two-thirds of Republicans would
> roll over like roaches (and it might soon come to that, since the
> permanent government has to realize the GOP can no longer effectively
> pretend to be an "opposition" party).

On the contrary, I predict that this part of the bill will not pass. Opposition to this measure will come from every quarter.

> If you're awake, I shouldn't have to spell out to you why allowing
> the government to introduce evidence _without even pretending to
> account for its provenance_ is a horrific idea. But here's a twist
> you might not think about.
> [...]
> A government spy could sign up for Hotmail, say, using your name,
> send messages in which "you" describe plans to blow up Tipper Gore or
> give away crack rocks instead of candy on Halloween, and then
> introduce printouts of those messages into court as evidence.
> Remember: if this law passes, the government doesn't have to say
> where it comes from or how it got it.

This is probably not the most serious problem with such a measure. The legal system already relies on the honesty of the prosecutors, judges, and other officers involved. Prosecutors for example are required to turn over all evidence, even exculpatory evidence, to the defense. A prosecutor who wanted to improve his record could simply sit on anything which tended to prove the defendant's innocence. Granted, there are cases where such things have happened, but the prosecutor involved risks prosecution himself. Not many people will risk going to prison just to do their job a little better.

I believe the proposed law does require the prosecution to answer to the judge about the source of the information, so that he can evaluate whether the evidence is valid. The change is that the defense cannot be present to challenge it (constitutionally questionable, as mentioned above). But this does provide an additional mechanism for reducing the chances of fraud.

In my opinion the more serious problem with the measure is that it would encourage investigators to violate restrictions on surveillance. Without challenge by the defense, investigators could extend wiretaps/emailtaps beyond the authorized scope. This could lead to surveillance on a very broad scale. There has been a scandal in Los Angeles recently in which it has been learned that the LAPD has misused its wiretap authority in exactly this way. Fortunately it is coming to light due to the efforts of the public defender's office. If something similar happened under the newly proposed laws, this oversight would not have been available.