Criminalizing crypto criticism

[Arnold G. Reinhold]

At 1:56 AM -0400 7/27/2001, Declan McCullagh wrote:
>On Thu, Jul 26, 2001 at 10:53:02PM -0400, David Jablon wrote:
>> With these great new laws, there is no longer any risk of being legally
>> criticised for using even the most glaringly flawed cryptography 
>>-- just use it
>> for Copy Protection, and TADA!  Negative criticism magically disappears.
>> Almost by definition.
>>
>> Flaws can only be exposed by those who won't show their work,
>> or from anonymous sources, who nobody will trust without confirmation [...]
>[...]
>> We seem to be entering the twilight zone -- the end of an exciting,
>> but brief era -- of public cryptography.
>
>The DMCA may be bad, but it's not *that* bad. It contains a broad
>prohibition against circumvention ("No person shall circumvent a
>technological measure that effectively controls access") and then has
>a bunch of exceptions.
>
>One of those -- and you can thank groups like ACM for this, if my
>legislative memory is correct -- explicitly permits encryption
>research. You can argue fairly persuasively that it's not broad
>enough, and certainly 2600 found in the DeCSS case that the judge
>wasn't convinced by their arguments, but at least it's a shield of
>sorts. See below.

If you read the language carefully, you will see that 1201g only 
permits *circumvention* as part of cryptographic research (and then 
only under limited circumstances). There is nothing in the law that 
allows publication of results.

Even the recent Shamir, et. al. paper on RC4 and WEP could arguably 
violate DMCA. WEP could be considered a TPM since it protects 
copyrighted works (e.g. e-mail). More importantly RC4 could be used 
in some other copy protection system that we don't know about -- it's 
use might even be a trade secret.  There is simply no way to 
guarantee that a given cryptoanalytic result doesn't compromise some 
TPM. Even software that breaks Ceaser ciphers could be actionable. 
DCMA is *that* bad.

Arnold Reinhold


>
>-Declan
>
>PS: Some background on Sklyarov case:
>http://www.politechbot.com/cgi-bin/politech.cgi?name=sklyarov
>
>PPS: Note you only get the exemption if you make "a good faith effort
>to obtain authorization before the circumvention." Gotta love
>Congress, eh?
>
>
>
>http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR:
>
>`(g) ENCRYPTION RESEARCH-
>
>`(1) DEFINITIONS- For purposes of this subsection--
>
>`(A) the term `encryption research' means activities necessary to
>identify and analyze flaws and vulnerabilities of encryption
>technologies applied to copyrighted works, if these activities are
>conducted to advance the state of knowledge in the field of encryption
>technology or to assist in the development of encryption products; and
>
>`(B) the term `encryption technology' means the scrambling and
>descrambling of information using mathematical formulas or algorithms.
>
>`(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH- Notwithstanding the
>provisions of subsection (a)(1)(A), it is not a violation of that
>subsection for a person to circumvent a technological measure as
>applied to a copy, phonorecord, performance, or display of a published
>work in the course of an act of good faith encryption research if--
>
>`(A) the person lawfully obtained the encrypted copy, phonorecord,
>performance, or display of the published work;
>
>`(B) such act is necessary to conduct such encryption research;
>
>`(C) the person made a good faith effort to obtain authorization
>before the circumvention; and
>
>`(D) such act does not constitute infringement under this title or a
>violation of applicable law other than this section, including section
>1030 of title 18 and those provisions of title 18 amended by the
>Computer Fraud and Abuse Act of 1986.
>
>`(3) FACTORS IN DETERMINING EXEMPTION- In determining whether a person
>qualifies for the exemption under paragraph (2), the factors to be
>considered shall include--
>
>`(A) whether the information derived from the encryption research was
>disseminated, and if so, whether it was disseminated in a manner
>reasonably calculated to advance the state of knowledge or development
>of encryption technology, versus whether it was disseminated in a
>manner that facilitates infringement under this title or a violation
>of applicable law other than this section, including a violation of
>privacy or breach of security;
>
>`(B) whether the person is engaged in a legitimate course of study, is
>employed, or is appropriately trained or experienced, in the field of
>encryption technology; and
>
>`(C) whether the person provides the copyright owner of the work to
>which the technological measure is applied with notice of the findings
>and documentation of the research, and the time when such notice is
>provided.
>
>`(4) USE OF TECHNOLOGICAL MEANS FOR RESEARCH ACTIVITIES-
>Notwithstanding the provisions of subsection (a)(2), it is not a
>violation of that subsection for a person to--
>
>`(A) develop and employ technological means to circumvent a
>technological measure for the sole purpose of that person performing
>the acts of good faith encryption research described in paragraph (2);
>and
>
>`(B) provide the technological means to another person with whom he or
>she is working collaboratively for the purpose of conducting the acts
>of good faith encryption research described in paragraph (2) or for
>the purpose of having that other person verify his or her acts of good
>faith encryption research described in paragraph (2).
>
>
>
>
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