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########## ########## ########## | ########## ########## ########## | GILMORE VS. THE NSA #### #### #### | ######## ######## ######## | ######## ######## ######## | THE CRYPTO ANARCHIST MANIFESTO #### #### #### | ########## #### #### | 2nd PIONEER AWARDS DEADLINE LOOMS ########## #### #### | ===================================================================== EFFector Online December 11, 1992 Issue 4.00 A Publication of the Electronic Frontier Foundation ISSN 1062-9424 ===================================================================== ACCESSING THE NSA JOHN GILMORE FILES SUIT WITH THE NATIONAL SECURITY AGENCY At the beginning of July 1992, John Gilmore filed a FOIA request with NSA asking for access to parts of cryptologic treatises written by NSA personnel: Military Cryptanalysis, Parts III and IV, by William Friedman (WF-3/4); and Military Cryptanalytics, Parts III-VI, by William Friedman and Lambros Callimahos (LC3-6). Parts I and II of each of these treatises had already been declassified and published. At the time of the request, it was not definitely known whether the parts requested by Gilmore had been re-classified. Under the FOIA, agencies are required to communicate responses to requesters within statutorily prescribed time periods. Failure to comply with the time limits for response constitutes a denial of the request, giving the requester the right to appeal. When NSA violated the first applicable time period, Gilmore filed an administrative appeal with the NSA's FOIA appeals authority. There is also a time limit for response to such appeals. After this time limit passed without a response from the NSA's appeals authority, Gilmore filed a complaint in federal court in the Northern District of California on Sept. 4, 1992, as permitted by the FOIA. Gilmore's complaint alleged three claims: First, that the NSA improperly withheld these documents from him, and had no legal basis for withholding; second, that the NSA's failure to comply with the FOIA time limits constituted a form of improper withholding; and third, that the NSA in general engages in an illegal pattern or practice of routinely violating the FOIA time limits, which should be declared illegal and enjoined. In the period between the initial FOIA request to NSA, and the filing of the complaint in federal court, Gilmore obtained copies of two of the withheld documents: Military Cryptanalysis Parts III and IV, by Friedman. These copies were discovered in libraries accessible to the general public and were provided by these libraries without any kind of restriction. Gilmore intended to get expert opinion on the national security risk posed by disclosure of these documents. He also reasoned that their very availability in such libraries demonstrated that there could be no legal basis for withholding them from a FOIA requester. At the time the documents were obtained, Gilmore had not received any indication from NSA that the documents were classified. It was therefore possible that the documents were not, in fact, classified. In addition, FOIA requests for documents generally trigger agency declassification review. Thus, even if the documents were in fact classified at the time of the request, it was possible that NSA would decide that they should no longer be classified, and release them to Gilmore. After the complaint was filed, Gilmore not only served the complaint upon NSA, he also served a number of discovery requests upon NSA, seeking to discover information about both the history of these documents and about NSA's FOIA processing procedures. In early October, after NSA had received the complaint and the discovery requests, NSA finally sent its responses to the FOIA request. NSA informed Gilmore that the documents were not going to be released to him. NSA said that it had located WF-3/4 and LC-3, but that LC-4/5/6 had never been completed because of the death of Lambros Callimahos. First, NSA asserted that the three documents which did exist were classified. WF-3/4 were classified CONFIDENTIAL, the lowest level of classification under Executive Order 12,356 governing classified information. LC-3 was classified SECRET, the middle level of classification. Under the FOIA, an agency may withhold documents if they are properly classified for reasons of national security. Second, NSA asserted that the documents could also be withheld under a different exemption in the FOIA. Under the (b)(3) exemption, documents may be withheld if there exists a statute which authorizes an agency to withhold them. NSA pointed to several statutes which arguably covered this material. One of these statutes, 18 U.S.C. Section 798, makes it a federal crime knowingly to disclose classified cryptologic or communications intelligence information to unauthorized persons. At this point, it became clear to Gilmore that there was a problem. He now knew for a fact that the documents he had were classified (WF-3/4) and that it would be a crime for him to disseminate them. He could no longer continue with his plan of showing them to other persons for fear of criminal prosecution. He also feared that should NSA ever discover that he possessed them, he would be subjected to search and seizure and the copies confiscated. (Note that although the First Amendment Privacy Protection Act generally protects the press against search and seizure for materials intended for publication where the crime involves mere possession or dissemination of information, it does not apply to any materials covered by the espionage statutes, of which 18 U.S.C. Section 798 is one.) NSA did not, however, know that he had them. Gilmore decided that the best course of action was to submit copies of WF-3/4 to the federal district court under seal. By so doing, he would ensure that at least these copies would be kept out of the NSA's hands, since it was unlikely that a federal judge would relinquish possession of documents material to pending litigation. Thus, on November 12, Gilmore made an ex parte application to file these documents under seal with Judge Thelton Henderson, the federal judge hearing his case. Gilmore also concurrently filed a motion for leave to amend his original complaint in order to address the constitutional and other issues arising from his possession of the documents and the criminality of disseminating documents found in libraries open to the general public. It is important to realize that the criminal statute at issue here does not recognize improper classification as a defense. Under existing law, the government need only show that the documents were classified by the government, and that they are cryptologic- or communications-intelligence-related. It remains unclear precisely what the specific requirement under the statute is, i.e., whether "knowingly" means actual knowledge of classification, or merely some reason to know. (That same day, NSA filed two motions of its own: a motion for a protective order blocking Gilmore's discovery requests, and a motion for summary judgment asking the court to dispose of the case on the ground that NSA was entitled to judgment as a matter of law. In support of its summary judgment motion, NSA filed a sworn declaration by Michael Smith, Chief of Policy, explaining why the documents should be withheld, and why NSA's FOIA processing procedures were not illegal.) NSA was served with papers indicating that WF-3/4 had been received by the district court. This was the first time that NSA knew that Gilmore possessed the documents. They reacted strongly. John Martin, the Justice Department lawyer representing NSA, asked that Gilmore surrender his copies to NSA, saying that NSA was very upset and might send its own agents or FBI agents to get the copies from Gilmore. He also wanted to know where Gilmore got them. Martin also suggested that Gilmore might be criminally liable under the espionage statutes relating to possession of national defense information. NSA regained its composure the next day, realizing that it did not know exactly what Gilmore had. Although NSA had been served with papers indicating what Gilmore had done, Gilmore had not sent them copies of the documents. Thus they could not know for sure whether the documents he had were the ones they considered classified. Gilmore agreed to send copies of his copies to NSA for their review, after which NSA would decide what to do. During this period, tension was high. Gilmore considered filing an ex parte motion for a temporary restraining order against NSA and the U.S. Attorney General to prevent them >from both moving against him personally and against any copies of the documents presently on library shelves. This motion was drafted but never filed. On the day before Thanksgiving, NSA announced that WF-3/4 would be declassified, and effectively renounced any claim that it could withhold them from the public. NSA gave no official reason for its action. NSA is currently reviewing the third document, LC-3, to see how much of it can be released now that WF-3/4 have been declassified. (NSA had asserted in its summary judgment papers that LC-3 was based on WF-3/4.) NSA's review is to be completed by January 15, 1993, at which time it will release an edited version of LC-3 to Gilmore. It is anticipated that this edited version of LC-3 will be analyzed by Gilmore and his experts, and that Gilmore and NSA will engage in settlement negotiations to determine whether NSA has satisfied Gilmore's request. The settlement discussions will also include Gilmore's claims regarding NSA's FOIA processing procedures. The parties have stipulated that if no settlement is reached the litigation will proceed. A status conference has been set for February 9. NSA will, if necessary, file an amended motion for summary judgment by February 12. Following opposition and reply briefs, the hearing on all motions will take place on March 22. [John Gilmore is a member of the EFF Board of Directors. He can reached as gnu@cygnus.com. Gilmore's lawyer, Lee Tien, can be reached as tien@toad.com.] -==--==--==-<>-==--==--==- THE CRYPTO ANARCHIST MANIFESTO by Timothy C. May (tcmay@netcom.com) A specter is haunting the modern world, the specter of crypto anarchy. Computer technology is on the verge of providing the ability for individuals and groups to communicate and interact with each other in a totally anonymous manner. Two persons may exchange messages, conduct business, and negotiate electronic contracts without ever knowing the True Name, or legal identity, of the other. Interactions over networks will be untraceable, via extensive re- routing of encrypted packets and tamper-proof boxes which implement cryptographic protocols with nearly perfect assurance against any tampering. Reputations will be of central importance, far more important in dealings than even the credit ratings of today. These developments will alter completely the nature of government regulation, the ability to tax and control economic interactions, the ability to keep information secret, and will even alter the nature of trust and reputation. The technology for this revolution--and it surely will be both a social and economic revolution--has existed in theory for the past decade. The methods are based upon public-key encryption, zero-knowledge interactive proof systems, and various software protocols for interaction, authentication, and verification. The focus has until now been on academic conferences in Europe and the U.S., conferences monitored closely by the National Security Agency. But only recently have computer networks and personal computers attained sufficient speed to make the ideas practically realizable. And the next ten years will bring enough additional speed to make the ideas economically feasible and essentially unstoppable. High-speed networks, ISDN, tamper-proof boxes, smart cards, satellites, Ku-band transmitters, multi-MIPS personal computers, and encryption chips now under development will be some of the enabling technologies. The State will of course try to slow or halt the spread of this technology, citing national security concerns, use of the technology by drug dealers and tax evaders, and fears of societal disintegration. Many of these concerns will be valid; crypto anarchy will allow national secrets to be traded freely and will allow illicit and stolen materials to be traded. An anonymous computerized market will even make possible abhorrent markets for assassinations and extortion. Various criminal and foreign elements will be active users of CryptoNet. But this will not halt the spread of crypto anarchy. Just as the technology of printing altered and reduced the power of medieval guilds and the social power structure, so too will cryptologic methods fundamentally alter the nature of corporations and of government interference in economic transactions. Combined with emerging information markets, crypto anarchy will create a liquid market for any and all material which can be put into words and pictures. And just as a seemingly minor invention like barbed wire made possible the fencing-off of vast ranches and farms, thus altering forever the concepts of land and property rights in the frontier West, so too will the seemingly minor discovery out of an arcane branch of mathematics come to be the wire clippers which dismantle the barbed wire around intellectual property. Arise, you have nothing to lose but your barbed wire fences! -==--==--==-<>-==--==--==- Date: Wed, 02 Dec 92 21:31:47 -0800 From: haynes@cats.UCSC.EDU (Jim Haynes) Newsgroups: comp.dcom.telecom Subject: Historical Note on Telecom Privacy Apropos of all the talk on FBI wiretapping, cellular eavesdropping, etc., I found this passage in "Old Wires and New Waves"; Alvin F. Harlow; 1936. He's writing about unscrupulous telegraph operators in the early days. They would use information in telegrams for personal gain, or delay messages or news for personal gain, or sell news reports to non-subscribers of the press association. "Pennsylvania passed a law in 1851, making telegrams secret, to prevent betrayal of private affairs by operators. When, therefore, an operator was called into court in Philadelphia a little later, and ordered to produce certain telegrams which would prove an act of fraud, he refused to do so, saying that the state law forbade it. The circuit court, shocked at this development, proceeded to override the law, saying: It must be apparent that, if we adopt this construction of the law, the telegraph may be used with the most absolute security for purposes destructive to the well-being of society - a state of things rendering its absolute usefulness at least questionable. The correspondence of the traitor, the murderer, the robber and the swindler, by means of which their crimes and frauds could be the more readily accomplished and their detection and punishment avoided, would become things so sacred that they never could be accessible to the public justice, however deep might be the public interest involved in their production. The judge therefore ordered the operator to produce the telegrams." -==--==--==-<>-==--==--==- THE SECOND ANNUAL INTERNATIONAL EFF PIONEER AWARDS: CALL FOR NOMINATIONS Deadline: December 31,1992 In every field of human endeavor,there are those dedicated to expanding knowledge,freedom,efficiency and utility. Along the electronic frontier, this is especially true. To recognize this,the Electronic Frontier Foundation has established the Pioneer Awards for deserving individuals and organizations. The Pioneer Awards are international and nominations are open to all. In March of 1992, the first EFF Pioneer Awards were given in Washington D.C. The winners were: Douglas C. Engelbart of Fremont, California; Robert Kahn of Reston, Virginia; Jim Warren of Woodside, California; Tom Jennings of San Francisco, California; and Andrzej Smereczynski of Warsaw, Poland. The Second Annual Pioneer Awards will be given in San Francisco, California at the 3rd Conference on Computers, Freedom, and Privacy in March of 1993. All valid nominations will be reviewed by a panel of impartial judges chosen for their knowledge of computer-based communications and the technical, legal, and social issues involved in networking. There are no specific categories for the Pioneer Awards, but the following guidelines apply: 1) The nominees must have made a substantial contribution to the health, growth, accessibility, or freedom of computer-based communications. 2) The contribution may be technical, social, economic or cultural. 3) Nominations may be of individuals, systems, or organizations in the private or public sectors. 4) Nominations are open to all, and you may nominate more than one recipient. You may nominate yourself or your organization. 5) All nominations, to be valid, must contain your reasons, however brief, on why you are nominating the individual or organization, along with a means of contacting the nominee, and your own contact number. No anonymous nominations will be allowed. 6) Every person or organization, with the single exception of EFF staff members, are eligible for Pioneer Awards. 7) Persons or representatives of organizations receiving a Pioneer Award will be invited to attend the ceremony at the Foundation's expense. You may nominate as many as you wish, but please use one form per nomination. You may return the forms to us via email to pioneer@eff.org You may mail them to us at: Pioneer Awards, EFF, 155 Second Street Cambridge MA 02141. You may FAX them to us at: +1 617 864 0866 Just tell us the name of the nominee, the phone number or email address at which the nominee can be reached, and, most important, why you feel the nominee deserves the award. You may attach supporting documentation. Please include your own name, address, and phone number. We're looking for the Pioneers of the Electronic Frontier that have made and are making a difference. Thanks for helping us find them, The Electronic Frontier Foundation -------EFF Pioneer Awards Nomination Form------ Please return to the Electronic Frontier Foundation via email to: pioneer@eff.org via surface mail to EFF 155 Second Street, Cambridge, MA 02141 USA; via FAX to +1 617 864 0866 Nominee: Title: Company/Organization: Contact number or email address: Reason for nomination: Your name and contact information: Extra documentation attached: DEADLINE: ALL NOMINATIONS MUST BE RECEIVE BY THE ELECTRONIC FRONTIER FOUNDATION BY MIDNIGHT, EASTERN STANDARD TIME U.S., DECEMBER 31,1992. -==--==--==-<>-==--==--==- MEMBERSHIP IN THE ELECTRONIC FRONTIER FOUNDATION If you support our goals and our work, you can show that support by becoming a member now. Members receive our bi-weekly electronic newsletter, EFFector Online, the @eff.org newsletter and special releases and other notices on our activities. But because we believe that support should be freely given, you can receive these things even if you do not elect to become a member. Our memberships are $20.00 per year for students, $40.00 per year for regular members. You may, of course, donate more if you wish. Our privacy policy: The Electronic Frontier Foundation will never, under any circumstances, sell any part of its membership list. We will, from time to time, share this list with other non-profit organizations whose work we determine to be in line with our goals. If you do not grant explicit permission, we assume that you do not wish your membership disclosed to any group for any reason. ---------------- EFF MEMBERSHIP FORM --------------- Mail to: The Electronic Frontier Foundation, Inc. 155 Second St. #40 Cambridge, MA 02141 I wish to become a member of the EFF I enclose:$__________ $20.00 (student or low income membership) $40.00 (regular membership) $100.00(Corporate or company membership. This allows any organization to become a member of EFF. It allows such an organization, if it wishes to designate up to five individuals within the organization as members.) I enclose an additional donation of $ Name: Organization: Address: City or Town: State: Zip: Phone:( ) (optional) FAX:( ) (optional) Email address: I enclose a check [ ] . Please charge my membership in the amount of $ to my Mastercard [ ] Visa [ ] American Express [ ] Number: Expiration date: Signature: Date: I hereby grant permission to the EFF to share my name with other non-profit groups from time to time as it deems appropriate [ ] . Initials: Your membership/donation is fully tax deductible. ===================================================================== EFFector Online is published by The Electronic Frontier Foundation 155 Second Street, Cambridge MA 02141 Phone: +1 617 864 0665 FAX: +1 617 864 0866 Internet Address: eff@eff.org Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the view of the EFF. To reproduce signed articles individually, please contact the authors for their express permission. ===================================================================== This newsletter is printed on 100% recycled electrons.