Fwd: [freenet-dev] US government tries to bring back the Clipper Chip - on steroids

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Much of the below is second hand or half-remembered, feel free to correct m=
e, I have some URLs at the end. The strategy issues at the end might be int=
erpreted as condoning illegal filesharing; my views on copyright are well k=
nown, filesharing is a legitimate technology, and there are legitimate priv=
acy and censorship issues. Besides, we have already discussed this on IRC. =
And of course, IANAL!

Legislation will be introduced in the new year by the obama administration =
to (amongst other things) force peer to peer software developers to redesig=
n their systems to allow intercept warrants to be serviced. I don't know wh=
at form warrants take i.e. whether they can require a pseudonymous identity=
 to be traced or whether it is limited to intercepting comms between two kn=
own pseudonyms and whether that includes downloads etc. The Tea Party scum =
use the constitution in their rhetoric but are unlikely to stand against in=
tercept powers to beat terrorists etc. It is highly unlikely that this will=
 get past the Supreme Court, based on a previous judgement that crypto expo=
rt restrictions violate freedom of speech (think about it), and there is no=
 need to manufacture a test case; as soon as it passes a suit can be filed.=
 At least twice a decade congress attempts such a monstrosity and it is gen=
erally repelled. Having said that, a good deal of legislation that is uncon=
stitutional does actually pass, some of it is repealed by the courts and th=
en immediately reinstated in a slightly different form. Extrajudicial sanct=
ions against casually-provable filesharers are coming in Europe but would l=
ikely be unconstitutional in the US. There is law to block copyright infrin=
ging sites going through the process as well; extrajudicial blacklists woul=
d almost certainly be unconstitutional in the US, whether getting a low cou=
rt to block it and forcing them to appeal would be is unclear. Takedown not=
ices (implement or contest in court at your own expense) already exist for =
content hosted by ISPs, and many argue they are unconstitutional, but would=
 be a cheap way to block sites, although the current proposed law just allo=
ws the attorney general to create an "optional" blacklist (and the courts t=
o create a mandatory one).

In Europe, extrajudicial sanctions are common. They will be implemented som=
e time soon here. Blocking of sites has been implemented here, although it =
may need secondary legislation. I don't know exactly how it works, it may r=
equire involvement of a low court. In some countries there are laws against=
 developing p2p software, such as France. The ECHR is even slower than the =
US Supreme Court, and is generally weaker. IMHO we will see big problems in=
 Europe first.

Meanwhile the Anti-Counterfeiting Trade Agreement will introduce blocking a=
nd probably filesharing sanctions and other things via international treaty=
=2E The movie industry body recently asked whether they could use it to blo=
ck WikiLeaks! The DMCA, which is widely argued to be unconstitutional but r=
emains in force, was also the product of an international treaty, and was e=
mulated in europe.

However, there are two key positive areas to consider:

1. The state of the music industry. It still manufactures ridiculous number=
s based on the assumption that everyone who downloads a track would have bo=
ught it. These numbers are likely based on assuming they would have bought =
them off iTunes, rather than the much cheaper option of getting a Spotify s=
ubscription (or listening to them for free but I imagine there are volume l=
imits?). Anyway, arguably because of pressure from filesharing as much as a=
nything else, you can get cheap all-you-can-eat deals, and because users do=
n't like DRM, the music industry has largely given up on it.

2. Even if conventional filesharing is systematically persecuted, this will=
 drive users to us - provided that we have a fast, easy to use, adequately =
secure, scalable offering. In the short term, this will likely be by tracin=
g users of known illegal content and suing them or taking extrajudicial san=
ctions. This has already had a big effect on the number of French Freenet u=
sers. At which point Freenet would become the target, but it would be big e=
nough to build a real darknet. Assuming freenet is adequately secure (wheth=
er this can be achieved on opennet is uncertain), there would have to be sp=
ecific legislation (or unilateral action by ISPs), and either blunt blockin=
g of all customer-to-customer connections (e.g. via abusing the RBL's), wit=
h substantial collateral damage, or traffic flow analysis and blocking of e=
verything that looks like a peer to peer network (which would cost more and=
 produce somewhat less collateral damage). Either way you'd likely snare va=
rious "legitimate" peer to peer networks although a licensing scheme might =
be set up; this would of course discourage innovation, but corporatist nons=
ense favouring big corporations and ultimately weakening competition and ca=
pitalism happens all the time (e.g. software patents). Either way you're on=
 very shaky ground legally in the US, especially if it is mandatory. IMHO i=
n countries where such horrible things happen there are still options for f=
reenet-style connectivity, but they involve more work and higher latency (a=
lthough not necessarily lower bandwidth). But it's interesting to note that=
 AFAIK China hasn't done this yet, despite taking very strong measures agai=
nst Tor. Probably because they see p2p as mainly an issue for copyright (wh=
ich they don't care about) rather than anti-political-censorship (meaning f=
reenet is too hard to get and too hard to use).

EFF on recent proposal:
http://www.eff.org/deeplinks/2010/09/government-seeks
NY Times story on recent proposal:
http://www.nytimes.com/2010/09/27/us/27wiretap.html
Ninth Circuit: Crypto export controls unconstitutional
http://www.eff.org/press/archives/2008/04/21-29
MPAA: Can we use ACTA to block WikiLeaks?
http://www.techdirt.com/articles/20100915/10324411026/mpaa-wants-to-know-if=
=2Dacta-can-be-used-to-block-wikileaks.shtml

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From: Ian Clarke <[email protected]>
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http://www.nytimes.com/2010/09/27/us/27wiretap.html?_r=1&src=ISMR_HP_LO_MST_FB

Its a proposal that would force all communication providers, including
software providers, to provide a back-door to enable wire-tapping.

I strongly suspect it will go the way of the failed "Clipper chip" of the
90s.  I also think that there is a strong first-amendment argument that
requiring that communication software include a back-door is an infringement
of the first-amendment rights of the software author.

In short, expect a major backlash.

That being said, if it does go through it will force us to move any
Freenet-related development out of the US, unless we want to make it a
test-case.  It may even mean that I need to give up my role as project
coordinator should I decide to remain in the United States.

Whatever happens, the one thing that will never be an option is compliance
with this law (even if Freenet's current developers went insane and agreed
to install a back-door, the project would be forked in a millisecond).

I expected better from Obama's administration.

Ian.

-- 
Ian Clarke
CEO, SenseArray
Email: ian-ep39ePjc15/[email protected]
Ph: +1 512 422 3588

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<a href=3D"http://www.nytimes.com/2010/09/27/us/27wiretap.html?_r=3D1&amp;s=
rc=3DISMR_HP_LO_MST_FB">http://www.nytimes.com/2010/09/27/us/27wiretap.html=
?_r=3D1&amp;src=3DISMR_HP_LO_MST_FB</a><br clear=3D"all"><br><div>Its a pro=
posal that would force all communication providers, including software prov=
iders, to provide a back-door to enable wire-tapping.</div>

<div><br></div><div>I strongly suspect it will go the way of the failed &qu=
ot;Clipper chip&quot; of the 90s. =A0I also think that there is a strong fi=
rst-amendment argument that requiring that communication software include a=
 back-door is an infringement of the first-amendment rights of the software=
 author.</div>

<div><br></div><div>In short, expect a major backlash.</div><div><br></div>=
<div>That being said, if it does go through it will force us to move any Fr=
eenet-related development out of the US, unless we want to make it a test-c=
ase. =A0It may even mean that I need to give up my role as project coordina=
tor should I decide to remain in the United States.</div>

<div><br></div><div>Whatever happens, the one thing that will never be an o=
ption is compliance with this law (even if Freenet&#39;s current developers=
 went insane and agreed to install a back-door, the project would be forked=
 in a millisecond).</div>

<div><br></div><div>I expected better from Obama&#39;s=A0administration.</d=
iv><div><br></div><div>Ian.</div><div><br>-- <br>Ian Clarke<br>CEO, SenseAr=
ray<br>Email: <a href=3D"mailto:ian-ep39ePjc15/[email protected]">ian-ep39ePjc15/[email protected]</a><=
br>

Ph: +1 512 422 3588<br>
</div>

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