The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]
foia.cia.gov
foia.cia.gov
Bollocks.
It would be interesting to see people do the legwork for crypto policies in other European countries. I'd be particularly interested in Germany's policies, and Poland's.
The only fundamental force resisting these types of power grabs is a large body of citizens who both know and exercise their rights, and who look at government with suspicion instead of looking at it as a protector.
> The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If an exercise of power can be justified by reference to some Constitutional provision, then it is by definition delegated and the 10th amendment does not apply. If an exercise of power cannot be justified by reference to some Constitutional provision, then the 10th amendment is irrelevant because the federal government can't exercise a non-enumerated power anyway. In other words, there cannot be a situation where one provision of the Constitution says something is okay, but the 10th amendment says it isn't.
As far as "power grabs"--the government has always exercised plenary power over what comes into and out of the U.S. Establishing the Customs service was one of the very first things the First Congress did. Moreover, one of the founding purposes of the federal government was national security, and the federal government was always conceived of as having broad power in that area. Which is precisely why it's tautological.
The interpretation of the Tenth Amendment as a tautology—as a uniquely meaningless bit of prose in our constitution—did not exist in the first eleven or twelve decades of our country's history, and it seems to be quite clearly at odds with the explanation of Federalist 45 [1], in which James Madison wrote,
> The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
0. https://news.ycombinator.com/item?id=4948005
1. http://press-pubs.uchicago.edu/founders/documents/amendXs4.h...
The Federalist quote doesnt pertain to the 10th amendment. It is about the concept of enumerated powers in general. The 10th amendment isn't what makes the federal government one of enumerated powers, which is precisely why its superfluous.
And it is true that the framers envisioned the states having power over ordinary life. They also envisioned the federal government having broad power over interstate commerce. They didn't foresee that technological change would cause the latter to swallow the former.
That's why the Tenth Amendment was included in the Bill of Rights, as is quite clear from the historical record of the drafting and ratifying process. (This is not controversial, as I imagine you know.) But the meaning of the Tenth Amendment and the practical extent of the enumerated powers doctrine was nevertheless a muddle from the start, owing partly to the tension with the necessary-and-proper clause.
No one was at all sure what it took to justify a specific federal action under one of the enumerated powers. The issuance of passports is not on the list of enumerated powers, but the wartime Department of Foreign Affairs (renamed the Department of State in September 1789) was carried over into the constitutional era, issuing passports all the while. The power to annex territory—also absent from the list; but Jefferson decided that he could purchase Florida and Louisiana. And so on and so forth.
Still, there were indeed rare moments in the the nineteenth century when judges invoked the Tenth to nullify acts of Congress, as in Collector v. Day, 78 U.S. (11 Wall.) 113 (1871), which stood until 1939. It is easy to imagine that the amendment was rarely invoked before the progressive era mostly because the doctrine of enumerated powers was firmly established; the powers of the federal government were, in actual practice, vastly less in those days. The Tenth Amendment has been even more rarely invoked since the early decades of the twentieth century because progressive judges completely eviscerated it.
The Tenth Amendment means essentially nothing today, you're right, but that has not always been the case, and it's not because the words themselves are meaningless.
Then bills like the Patriot Act in its current form would have a much smaller chance of becoming laws, and then having the government abuse them for two decades before they are challenged at the Supreme Court.
It usually isn't that much of an issue because normally unconstitutional laws are quickly brought up through the courts and along the way injunctions are issued preventing the problematic portions of the law from being exercised. It's an issue with the latest spying and PATRIOT ACT laws (along with all it's spawn) is the fact that because of the secrecy it's fairly impossible to prove standing for the challenge to begin in the first place.
The right way to keep unconstitutional bills from becoming law is to vote for representatives who won't vote for them and presidents who won't sign them. Hoping a handful of septuagenarians in robes will "do the right thing" is fundamentally an anti-small-d-democratic and anti-small-r-republican notion.
What is next? Obviously, an international resolution on the control and management of encryption technology is a desirable goal, if not a lofty one. Critics of the Clinton Administration are right in noting that sophisticated criminals and terrorists will not use the encryption systems that that require key escrow registration. If an international referendum requires all encryption systems and users to register their keys, however, then criminals and terrorists will be forced into the escrow system. A worldwide key escrow system will not be put into place quickly, but with serious effort it may be attainable, and it is a worthwhile goal. The proliferation of strong encryption is already beyond control, but perhaps the continued monitoring of criminals and terrorists is not.
This view has probably evolved, but the goals are almost certainly the same. It is preferable to be able to keep track of you than it is to enable people in repressive regimes to communicate securely. Depending on whether you consider pervasive surveillance repressive, that could become a tautology.
Actually it was the original openssl developers who created a fork of Mozilla just so you could use 128-bit crypto in the browser overseas.
The language [1] describing visa ineligibility seems much more nuanced now. The last paper form that I filled in asked whether you had been involved in transporting munitions, strong crypto was classified as a munition at the time.
[1] http://travel.state.gov/content/visas/english/general/inelig...
The answer should therefore be "no" without hesitation. Otherwise that goes into a database but the interesting story about open source work on Netscape won't. So at that point as far the govt is concerned you might as well have been selling SAMs to Syria.
This seems to drift over into "Three Felonies A Day" territory. If asked that question either you lie and they can prosecute you for lying, or you tell the truth and they can make sure you're hassled over your answer. Though I believe that crypto software is no longer considered munitions (while still retaining some restrictions) - but IANAL...
Relevant lines:
"Representatives from the Organization for Economic Cooperation (OECD) backed the concept of key recovery systems during a January 1997 conference."
"The software industry estimated that, if export controls were removed, US companies could sell as much as $60 billion a year in encryption hardware and software by 2000."
He writes that in the context of describing the business leaders' arguments at the time. He could have written it much later. For example, I could write the following today: "Ronald Reagan estimated that unemployment would drop 2% by 1988".
That said, I see no definite references in the article past 1997.