EFFector Online December 11, 1992

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########## ########## ########## |         GILMORE VS. THE NSA

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########   ########   ########   |   THE CRYPTO ANARCHIST MANIFESTO

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########## ####       ####       |  2nd PIONEER AWARDS DEADLINE LOOMS

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EFFector Online           December 11, 1992               Issue  4.00

           A Publication of the Electronic Frontier Foundation

                            ISSN 1062-9424

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                      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.

                   -==--==--==-<>-==--==--==-

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