Comment by declan | Hacker News Reader

Comment by declan | Hacker News Reader

I was living in DC during the first Crypto Wars of the late 1990s and covering them as a reporter (I've since shifted to working on recent.io, of course). It sure looks like this will be Crypto Wars II: the Feds Strike Back.

From my experience a key question to ask is: What would the eventual law say? Will it make it a federal felony to possess an encrypted phone? Or a federal felony to sell one?

The FBI endorsed H.R. 695 the last time around, which would have done the latter. Read it for yourself:

"Whoever, after January 31, 2000, sells in interstate or foreign commerce any encryption product that does not include features or functions permitting duly authorized persons immediate access to plaintext or immediate decryption capabilities shall be imprisoned for not more than 5 years, fined under this title, or both..."

"After January 31, 2000, it shall be unlawful for any person to manufacture for distribution, DISTRIBUTE, or import encryption products intended for sale or use in the United States, unless that product-- `(1) includes features or functions that provide an immediate access to plaintext capability... requiring any person in possession of decryption information to provide such information to a duly authorized investigative or law enforcement officer..." (http://thomas.loc.gov/cgi-bin/cpquery/T?&report=hr108p4&dbna...)

Note the distribution ban above. That would have hit open-source and free software projects.

Put another way, implementation details matter. A lot of voters might agree with the general proposition that law enforcement should have a way to snoop on terrorists|child pornographers|drug kingpins. They might not agree that a 14-year HN reader with a forked version of Android|AOSP on Github should go to prison for 20 years because he dared to distribute an unencrypted OS.

I find it interesting that on one hand the government is telling a technology company they can't create technology which makes communication private and on the other hand the government is charging the CEO of a tech company[0] for creating technology which removes the privacy from communication.[0]

"In the first prosecution of its kind, federal officials said that StealthGenie violated the law by offering the ability to secretly monitor phone calls and other communications in almost real time, something typically legal only for law enforcement."

[0] http://www.washingtonpost.com/business/technology/make-of-ap...

The state tends to reserve a great many powers for itself that it will not permit the people to have. Congress itself routinely excludes itself from laws it writes with the full cooperation and support of the Administrative branch. It is rare if ever that the Judicial branch steps in because each loves its ability to act outside the law.

Was this part of the first crypto war? [1,2] I must not have been paying attention.

It's interesting to me that some claim the software didn't work at all:

> Now during all of this Jones and crew simply couldn't get the klutzy software to work.

And none other than Mary Jo was brought in from the home team. Rather strange déjà vu.

[1] http://cryptome.org/dirty-jones.htm [2] http://cryptome.org/dirty-lantern.htm#readers

I may be as naive as hell here, but when you go from, "we don't want US citizens selling crypto devices to terrorists" to "Timmy's going to see the inside of a jail cell for 20 years for giving Mark a copy of TailsOS" I just can't see how a judge or jury would let it go that far, and I don't think unintended consequences have ever gotten that bad.

It just smacks of fear-mongering. "They'll literally lock up your children!"

Yep, sorry, you're naive. :) The law != common sense. If a law is on the books, it may be applied broadly, even to Timmy and Mark. That's why it's important to ensure the laws are sensible before they're enacted.

Here's one example. Let's say there's a 16-year old girl and a 17-year old boy who are in a consensual dating relationship and, you know, take some racy photos of one other. The photos were taken consensually, not shared with anyone else, and stored only on their own computers/accounts. And let's say they're living in Florida and under state law, they're legally old enough to have sex with each other.

It would be fear-mongering to expect that these two happy teenagers would ever be prosecuted and convicted on "child pornography" charges, right? Except they were. And, as I wrote in 2007, a Florida appeals court upheld their criminal conviction: http://news.cnet.com/2100-1030_3-6157857.html

Yes, sorry, Timmy and Mark, sometimes a judge and jury will let it go that far. Sometimes they will "literally lock up your children..."

Ah, but that plays into the US's very strange views on sex. It feels like an exception, rather than the general rule.

US has strange views on a lot of things, including the one in question – privacy.

I don't think the US's views on sex and the US's views on privacy are quite comparable, given the 500 year history that comes with our weird prudishness.

Your point, as I understood it, was that jailing children for children pornography is an exception from normal routine because US has strange views on sex. My point is that US views on privacy ("nothing to hide") are also strange (relative to my viewpoint), so that will also be an "exception", and you shouldn't be surprised when these strange views will be applied in the courtroom.

I don't think sex and privacy come anywhere near each other, in terms of deviation from the global norm. The US doesn't have any particularly deviant view on privacy from the rest of the world, unlike sex.

Yes, but... the law is not rational. It will execute the code you give it.

It is JIT-compiled though, and courts will throw compiler errors from time to time.

But those jury nullification errors are non-deterministic, so you can't rely on them.

A large part of the US judicial system relies on people to take laws and find rational and reasonable interpretations.

Exactly. This is precisely the point. It will interpret and execute whatever code is thrown at it. The problem is that the code is NOT DETERMINISTIC (or non-deterministic, whatever). It can be interpreted in a variety of different ways.

This and the fact that 'compiled' code is sometimes altered by applying some money-based side effects gives us some pretty ridiculous results.

Correct me if I'm wrong but there's no easy way to fix this problem.

Don't think of it as corruption, think of it as aspect oriented programming!

BEFORE: go to jail

APPLY: expensive lawyer, public pressure

Let's not overlook the fact that the law doesn't actually have to be applied, it can be a bargaining chip. The prosecution mentality is to 'throw the book' at defendants and then the defendant has to try to negotiate down from that starting point.

Firearms might be a good analogy here. You don't need to actually shoot a robber for your firearm to be effective. The mere presence of it is often enough to scare them off.

And how is this "everyone can be in prison if we want it" attitude any good? That's a huge enabler of selective enforcement and limitless corruption.

> That's a huge enabler of selective enforcement and limitless corruption

I don't think anyone will argue with you on that one.

Right. We go from a nation of laws, to a nation of people that can break the law .. if you're well-connected. Which has a strong resemblance to the situation commonly found in what was formerly called banana republics.

Yes, but the problem is, the current mindset is to write laws that give them the right to do that.

The question isn't whether sanity would prevail in court. (I'm somewhat optimistic that it would, eventually.) The question is, given the current fear-driven mindset, isn't it probable that something like that will be written? And how do we stop it from being written (or at least enacted)?

Sanity in the court room is the last line of defense, not the first...

> I just can't see how a judge or jury would let it go that far

Oh they will, and in a few short years this will be the new status quo, and people will be wondering how we used to allow child pornographers and drug traffickers to hide behind encryption. YOU don't have anything to hide, do you?

Besides, when was the last time government-induced fear mongering failed? Not in the last decade.

> It just smacks of fear-mongering. "They'll literally lock up your children!"

Prosecutors had every intention of sending Aaron Swartz to prison. We don't need more stupid laws, we need to remove the existing ones.

Aaron Swartz was never convicted. Being charged with a crime and being convicted of a crime are two entirely different things.

Being charged with a crime and being found not guilty can still bankrupt you and consume years of your life. You can't be charged with a crime that isn't on the books.

You also can't stop criminals with a crime that isn't on the books.

If it isn't a crime then they aren't criminals.

I disagree, though I note your adherence to the dictionary definition of the word criminal.

There isn't another workable definition of the word. Maybe you want a word like "deviant" or "degenerate".

(of an action or situation) deplorable and shocking.

Now that we've gotten to quoting dictionary definitions to words, I think we've killed any good spirit that may have been left in this conversation.

What dictionary does your definition come from? According to multiple sources[0], the closest match to your definition (American Heritage's "Shameful; disgraceful: a criminal waste of talent.") is typically used in a figurative sense ("that spinach dip is criminally awful").

[0]: https://www.wordnik.com/words/criminal

Defining "criminal" to mean wrongful rather than illegal doesn't actually help you. Aaron Swartz or graduate students publishing crypto code would not be doing anything wrongful either. And no one is suggesting that we remove the laws against unarguably wrongful things like fraud or homicide, none of which could plausibly be used to charge any of those people.

> You also can't stop criminals with a crime that isn't on the books.

If you make this sentence mean anything at all, which requires redefining "criminals" as something like "moral wrongdoers, independent of whether their wrongdoing is actually a crime", then it still isn't true, as the existence of a law prohibiting an act is neither necessary nor sufficient to create disincentives to committing the act.

17 year olds were put on sex offender lists for having sex together, despite every call that "anti-pedophilia laws will never be used against teenagers having sex!". If a law can be used for a malicious purpose, it will be.

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