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The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]

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Re: The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]

#21
post #11
post #2

After a quick read of that document, I get the distinct impression that the US government feels it has a fundamental right to control all encryption schemes and to have access to any and all encrypted data. Bollocks.

This appears to be Clinton era. Remember, a lot of pioneering work in encryption was done for military purposes. At the time, I think it was fair for people to fail to see how it could be used by ordinary people, and think of it akin to exporting military technology.

Also before eCommerce and the Internet in general really took off the main application for encryption was national communications and in particular use by the military. With that view and context there's a pretty fair argument that proper strong encryption is mostly a military device, similar to the way GPS devices are limited to a certain speed and a given height. It turned out to be patently false but at the time it's not that outlandish of an assumption/view, especially in the limited world view of national security and spying agencies.

Re: The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]

#22
post #4

Earlier quoted context omitted.

The 10th Amendment is largely a fiction today. Instead, the opposite is true: the federal government frequently claims and uses novel powers until a Supreme Court case says it can't. And sometimes those powers get minor modifications to enable their re-use afterwards. 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 go…

This is why it's a shame the US doesn't have a Constitutional Court with its sole purpose of filtering out unconstitutional bills signed by the president before they become actual laws. 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.

A Constitutional Court seems like a good idea except the politics surrounding it would be at least as bad as those surrounding the Supreme Court and probably worse because it'd have an earlier and thus more powerful interdiction chance against laws.

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.

Re: The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]

#23
post #13
post #12

Earlier quoted context omitted.

We've had this conversation before [0], and I pointed out then that the tautological interpretation of the Tenth Amendment appeared only in the first decades of the twentieth century, not coincidentally in the jurisprudence of the very judges who started the parade of vast new federal powers rolling. The interpretation of the Tenth Amendment as a tautology—as a uniquely meaningless bit of prose in our constitution—di…

Im not relying on judicial authority. I'm talking about the plain text of the amendment. And while the tautology point wasn't written until this century, it's not like the 10th amendment was used as a check before that. 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,…

The text of the amendment is not tautological in itself: nowhere else in the constitution is it made clear whether the enumerated powers are a mere sampling of the federal government's authorities or an exhaustive list of them. So the Tenth Amendment is broadly understood to have codified the doctrine of enumerated powers—that is, the idea expressed by Madison in Federalist 45, that the enumerated powers are in fact meant to be taken as an exhaustive list.

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.

Re: The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]

#24
post #5

When was this published? I see the approval for release date, but not the author's publish date.

I don't see a date either, however given some of the dates in the document, it seems sometime between 1997 and 2000. 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 encryptio…

> "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.

Re: The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]

#25
post #19

Earlier quoted context omitted.

I don't recall ever being asked that. Is it only for non-citizens?

It could have been just for non-citizens. 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...

Dangerous stuff. Never be that truthful on government forms and do not make the mistake of trying to be clever or have an "interesting" story to tell or prove some point to the bureaucrat across the desk.

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.

Re: The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]

#27
post #25
post #19

Earlier quoted context omitted.

It could have been just for non-citizens. 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...

Dangerous stuff. Never be that truthful on government forms and do not make the mistake of trying to be clever or have an "interesting" story to tell or prove some point to the bureaucrat across the desk. 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…

Note that the parent said they lie on that question.

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...

Re: The Evolution of US Restrictions on Using and Exporting Encryption (1997) [pdf]

#29

Earlier quoted context omitted.

I don't see a date either, however given some of the dates in the document, it seems sometime between 1997 and 2000. 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 encryptio…

> "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…

I agree about the context here, and I thought over it before posting it. If you look at the previous statements which are also giving estimates, they have established dates. this led me to the conclusion that this statement about the year 2000 had some probabability of being written in the context of future estimate.
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