password-cracking by journalists...

[Arnold G. Reinhold]

At 9:41 AM -0500 1/18/02, Will Rodger wrote:
>Arnhold writes:
>
>>Another interesting question is whether the reporters and the Wall 
>>Street Journal have violated the DCMA's criminal provisions. The al 
>>Qaeda data was copyrighted (assuming Afghanistan signed one of the 
>>copyright conventions--they may not have), the encryption is 
>>arguably a "technological protection measure" and the breaking was 
>>done for financial gain.
>
>That, I think, is an unintended consequence of the law, but I bet 
>there's a lawyer somewhere who'd take a crack at it. More important 
>is the origin of the info. itself: were it peacetime you'd have a 
>pretty clear case of receiving stolen property. Add to that certain 
>trade-secret laws in various of the 50 United States, and you could 
>do a long time in the slammer over this...
>
>Will Rodger

This law has LOTS of unintended consequences.  That is why many 
people find it so disturbing.  For example, as I read it, and I am 
*not* a lawyer, someone who offered file decryption services for hire 
to people who have a right to the data, e.g. the owner lost the 
password, or a disgruntled employee left with the password, or a 
parent wants to see what was stored on their child's hard drive, 
could still be charged with committing a felony.

As for the legal situation before the DMCA,  the Supreme Court issued 
a ruling last year in a case, Barniki v. Volper,  of a journalist who 
broadcast a tape he received of an illegally intercepted cell phone 
conversation between two labor organizers.  The court ruled that the 
broadcast was permissible.  So the stolen property argument you give 
might not hold. The change wrought by the DMCA is that it makes 
trafficking in the tools needed to get at encrypted data, regardless 
whether one has a right to (there is an exemption for law 
enforcement) unlawful.

Arnold Reinhold



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