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Legal Net Newsletter Volume 1 Issue 17
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Legal Net Newsletter
Volume 1, Issue 17 -- September 21, 1993
Legal Net Newsletter is dedicated to providing information
on the legal issues of computing and networking in the 1990's
and into the future.
The information contained in this newsletter is not to be
misconstrued as a bona fide legal document, nor is it to be taken
as an advocacy forum for topics discussed and presented herein.
The information contained within this newsletter has been
collected from several governmental institutions, computer
professionals and third party sources.
"Legal Net News", "Legal Net Newsletter"
and the Legal Net News logo are
Copyright (c) 1993 Paul Ferguson -- All rights reserved.
This newsletter may be freely copied and distributed in its entirety.
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- --
In this issue -
o The Beginning -- Cryptographic Trial by Fire
- --
I had not intended to hastily patch together this issue; in fact,
I had an entirely different issue slated for dispatch until this
turn of events.
I sure hope that if you are reading this, that you also understand the
implications of these messages.
- Paul
------- Forwarded Messages
Subject: (fwd) *FLASH* Moby SUBPOENA served
Newsgroups: comp.org.eff.talk,sci.crypt,alt.security.pgp,talk.politics.crypto
Organization: NETCOM On-line Communication Services (408 241-9760 guest)
Xref: netcom.com comp.org.eff.talk:20002 sci.crypt:17638 alt.security.pgp:4909 talk.politics.crypto:102
Newsgroups: comp.org.eff.talk,sci.crypt,alt.security.pgp,talk.politics.crypto
Path: netcom.com!grady
From: grady@netcom.com (Grady Ward)
Subject: *FLASH* Moby SUBPOENA served
Message-ID: <gradyCDHF2s.Gto@netcom.com>
Organization: Moby lexicons
X-Newsreader: TIN [version 1.1 PL8]
Date: Fri, 17 Sep 1993 04:56:51 GMT
Lines: 22
FLASH
At 10:30 PM EST 9/16/93 a subpoena was served on
the Austin Code Works of Austin TX relating
"any and all correspondence, contracts, payments,
records, incluing computer data relating to
Moby Crypto and any other commercial product relating
to PGP and RSA"
you are commanded to give to Michael J. Yamaguchi
United States Attorney
Northern District of California
served by Theodore R. Siggins, special agent
Department of Treasury, US Customs Service
More details later.
- --
Grady Ward grady@netcom.com
3449 Martha Ct. compiler of Moby lexicons
Arcata, CA 95521-4884 e-mail or finger grady@netcom.com
(707) 826-7715 (voice/24hr FAX) for more information
------- End of Forwarded Message
- --
>From pgp-dev@ra.oc.com Fri Sep 17 00:34:20 1993
Date: Fri, 17 Sep 1993 02:32:46 -0500
From: Philip Zimmermann <prz@columbine.cgd.ucar.EDU>
Subject: PGP Customs investigation subpoena
I will be posting a note similar to this one later on Friday
to various newsgroups. You saw it here first.
-prz
--------------------------------------------------------------
On Tuesday, 14 September 93, Leonard Mikus, president of ViaCrypt,
also known as LEMCOM Systems, in Phoenix, Arizona, was served a
Subpoena to Testify Before Grand Jury, to produce documents. The
subpoena was issued by the US District Court of Northern California,
by Assistant US Attorney William P. Keane in San Jose, as part of an
investigation from the San Jose office of US Customs, conducted by
Special Agent Robin Sterzer. The US Attorney above Keane is Michael
J. Yamaguchi.
ViaCrypt is the company that will be selling a fully licensed
commercial version of PGP, starting in November. ViaCrypt has a
license from PKP to sell products that embody the patents held by
PKP. That includes PGP, using the RSA algorithm.
The subpoena, dated 9 September, orders the production of "Any and
all correspondence, contracts, payments, and records, including those
stored as computer data, involving international distribution related
to ViaCrypt, PGP, Philip Zimmermann, and anyone or any entity acting
on behalf of Philip Zimmermann for the time period June 1, 1991 to
the present." The date specified for the production of documents is
22 September 93.
The written agreement between ViaCrypt and myself explicitly states
that US State Department cryptographic export controls will be
adhered to.
The implications of this turn of events are that this US Customs
investigation has escalated to the level of a Federal Grand Jury and
a US Attorney. US Customs says that this change was precipitated by
a ruling recently handed down from the State Department that PGP is
not exportable. Other subpoenas and/or search warrants are expected.
I am the principal target of the investigation. I have advised EFF,
CPSR, and my other attorneys of the situation. A legal defense fund
will be set up by my lead attorney (Phil Dubois, 303 444-3885) here
in Boulder.
This case raises some serious public policy questions regarding First
Amendment rights to publish, rights to privacy as affected by
widespread availability of cryptographic technology, the equivalance
of electronic publication with paper publication, the availablity of
lawful domestic cryptographic technology in the face of export
controls, and certain other Constitutional rights. This may turn into
the test case for these issues.
-Philip Zimmermann
prz@acm.org
303 541-0140
--
Xref: netcom.com alt.wired:475 comp.lang.c:62219 alt.activism:50763
misc.legal:62914 alt.censorship:19449
Newsgroups: alt.wired,comp.lang.c,alt.activism,misc.legal,alt.censorship
Path: netcom.com!grady
From: grady@netcom.com (Grady Ward)
Subject: Subpoena served on Crypto
Organization: Moby lexicons
Date: Fri, 17 Sep 1993 06:59:50 GMT
FOR IMMEDIATE RELEASE
Subpoena served on Austin Code Works for
material related to Moby Crypto.
At 10:30 PM EDT Thursday, 16 Sept 1993 Theodore R. Siggins,
special agent for the Department of Treasury, U.S.
Customs Service office of enforcement for
Austin, TX (512) 482-5502 served the following
subpoena:
United States District Court
Northern District of California
TO:
Custodian of Records
Austin Code Works
11100 Leafwood Lane
Austin, TX
(512) 258-0785
SUBPOENA TO TESTIFY BEFORE GRAND JURY
documents of object(s)
PLACE
U.S. Courthouse & Federal Building
280 South First Street
San Jose, CA 95113
Grand Jury Room 2115
September 22, 1993 9:00 AM
YOU ARE ALSO COMMANDED to bring with you
Any and all correspondence, contracts, payments, and record,
including those stored as computer data, relating to the
international distribution of the commercial product "Moby
Crypto" and any other commercial product related to PGP and RSA
Source Code for the time period June 1, 1991 to the present.
CLERK
RICHARD W. WIERKING
by deputy clerk (illegible)
This subpoena is issued on application of the United States of America
Michael J. Yamaguchi
United States Attorney
Assistant U.S. Attorney
William P. Keane
280 S. First St., Suite 371
San Jose, CA 95113
(408) 291-7221
s/a Robin Sterzer, Customs
93-1348(SJ) 93-1(SJ)
9 September 1993
served by
Theodore R. Siggins
special agent
Department of Treasury
U.S. Customs Service
Office of Enforcement
P.O. Box 99
Austin, TX 78767
(FTS) 770-5502
(512) 482-5502
--------------------------- BACKGROUND ----------------------------
The day before yesterday I faxed the following to the NSA:
Grady Ward
3449 Martha Ct.
Arcata, CA 95521
(707) 826-7715
grady@netcom.com
Charlotte Knepper
National Security Agency
301 688 7834
FAX 301 688 8183
14 Sep 93
Re: Moby Crypto and the Austin Code Works
Recently you phoned Maria Guthery at the Austin Code Works (512-258-0785)
to voice your concern about the publication for export
of my product 'Moby Crypto'.
As the editor and author of the compilation I made sure not to include
any executable code -- only the algorithmic description in C source code
that can be found (and exported) from scores of books and journals from
the US distributed throughout the world.
I believe that this material qualifies for the 'public domain' technical
documentation exception under the current DTR rules.
It seems to me that proscribing the publication of material because it is
conveyed on a magnetic media rather than paper pulp is an NSA initiative
that is both destructive to our basic freedom of expression and to the
trade renaissance that Vice President Al Gore and the Clinton Administration
are trying to foster.
Even the Supreme Court recognizes the role of the computer media in
protecting our freedom; beginning this 1993 calendar year all decisions
will be provided in electronic form. Further, as you may know, it was
recently decided that White House records in electronic form must be
protected as a permanent archive of our government. Clearly, magnetic
media must be treated as a logical extension of the power and fundamental
right of the print media.
Please phone, fax, e-mail or post your ideas or any literature to me that
you think useful if I have misapprehended the situation.
Of course if you wish I will send you a gratis copy of the software
(about nine megabytes of sources for DES, RSA, IDEA, Lucifer, PGP, SHA,
and so on) for your advice and comments.
Very truly yours,
GRADY WARD
--------------------- WHAT YOU SHOULD DO ---------------------
NSA and the US Treasury has started a new, agressive campaign to
prevent the spread of cryptographic ideas, algorithms, sources,
and documentation. The subpoena was served on the ACW in the night
because they MIGHT have sold a copy of source code, already available
worlwide, to a foreign national.
If you value the freedom to disseminate ideas on both paper and magentic
and electronic media, you should immediately preserve your right to
have such knowledge by obtaining a copy of the source to Pretty Good Privacy
and all other cryptographic materials before a possible complete blackout
of such material is attempted by the US authorities.
It is not yet against the law to possess source code to PGP, the world's
foremost encryption application in the United States. Source is available
for a variety of platforms including MS-DOS, Unix, and Macintosh from
the following sites:
soda.berkeley.edu
ghost.dsi.unimi.it
nic.funet.fi
ota.ox.ac.uk
van-bc.wimsey.bc.ca
and many other sites
For more information about PGP,
send a blank mail message to:
pgpinfo@mantis.co.uk
--
Grady Ward grady@netcom.com
3449 Martha Ct. compiler of Moby lexicons
Arcata, CA 95521-4884 e-mail or finger grady@netcom.com
(707) 826-7715 (voice/24hr FAX) for more information
- --
Date: Fri, 17 Sep 1993 14:21:17 -0400
Message-Id: <199309171821.AA24935@eff.org>
To: toad.com!cypherpunks, netcom.com!grady, acm.org!prz
From: uunet!eff.org!ssteele (Shari Steele)
Subject: Crypto Witchhunt?
Cc: eff.org!eff-board, eff.org!eff-staff
To the 'net community:
EFF is very concerned about the Customs Department-initiated grand jury
investigation into encryption export violations. Two U.S. companies have
been subpoenaed to produce documents related to the "international
distribution" of commercial products utilizing PGP and RSA source code.
Neither of these companies are engaged in the international distribution of
any illegal materials. EFF is working with the concerned parties and is
trying to find out the scope of the grand jury investigation.
Unfortunately for us in this case, grand jury investigations are secret, so
learning the scope is proving to be quite difficult.
What we do know is this:
Austin Code Works, a software publisher in Austin, Texas (heavy sigh), has
been planning to publish a code document written by Grady Ward called Moby
Crypto. Grady describes Moby Crypto as simply containing descriptive
source code, not executable object code, describing many cryptographic
routines that are freely available around the world. Most of this material
has been released in print form already. The important distinction seems
to be that Moby Crypto will be released in machine-readable format. Austin
Code Works has told Customs Agents that it does not intend to release Moby
Crypto outside of the U.S., yet the company has been subpoenaed to release
all documents related to this product. (Incidently, if Moby Crypto
contains no executable code, it should be exportable under ITAR, just as
textbooks containing such materials are exportable.)
ViaCrypt, a Phoenix, Arizona,-based (heavy sigh again -- man, does this
ring familiar) software producer that has a license to sell software
products that use the RSA algorithm, was issued a similar subpoena.
ViaCrypt has recently contracted with Phil Zimmermann, creator of the PGP
encryption code, to sell a commercial version of PGP. ViaCrypt only
distributes its products containing the RSA algorithm within the United
States, since RSA is not exportable under ITAR.
EFF has been in touch with Phil Zimmermann and his attorney, Grady Ward,
and the owner of Austin Code Works. We have advised everyone that there is
nothing to hide and that they should abide by the subpoenas and produce the
documents requested. We will not know what the appropriate response should
be until the grand jury makes its determinations. In the meantime, we want
everyone to know that EFF is committed to ensuring that the right to use
and publish whatever encryption method an individual chooses to use is
protected. Jerry Berman, EFF's Executive Director, issued the following
internal message this morning:
>I've assured Phil that he is not alone, and I have talked with his attorney.
>If Phil is charged with export control violations based on making PGP
>available in the US on a non-commercial basis and it happens to get
>published or copied overseas, First Amendment issues indeed may be joined.
>As of now, ViaCrypt has done no "exporting" and does not intend to. I have
>the subpoena.
Indeed, EFF has copies of both subpoenas. We will continue to keep you
informed of what's going on as we learn the facts. EFF is deeply
concerned, and we want Phil and everyone else involved to know that they
are not alone. As soon as it becomes clear what specifically is being
investigated, EFF will respond.
Shari
******************************************************************************
Shari Steele
Director of Legal Services
Electronic Frontier Foundation
1001 G Street, NW
Suite 950 East
Washington, DC 20001
202/347-5400 (voice), 202/393-5509 (fax)
ssteele@eff.org
- --
Date: Sun, 19 Sep 93 12:32:28 MDT
From: Philip Zimmermann <uunet!columbine.cgd.ucar.EDU!prz>
Cc: csn.org!dubois (Philip L. Dubois)
X-Mailer: ELM [version 2.3 PL0]
Some of you may have received my Internet message of a couple of days
ago about the ongoing U.S. Customs investigation of the exportation
of PGP, which has now progressed to the level of Federal Grand Jury
subpoenas. This earlier message was intended by me for distribution
to a very small group of friends who previously communicated their
concern about me and the investigation and asked to be kept
informed. I did not send the message to anyone outside this group.
Unfortunately, I did not adequately assert my desire that the message
not be further disseminated. It appears that the message has gone
completely public. This was not my intention.
My lawyer, Phil Dubois, has been in touch with the Assistant U.S.
Attorney (William Keane) assigned to the investigation. We have no
reason to believe that Mr. Keane is anything other than a professional
and reasonable person. He made it clear that no decision has been
made regarding any prosecution of anyone for any offense in this
matter. Such decisions will not be made for some time, perhaps
several months. Mr. Keane also made clear his willingness to listen
to us (me and my lawyer) before making any decision. It appears that
both Mr. Keane's mind and the lines of communication are open.
My fear is that public dissemination of my message will close the
lines of communication and put Mr. Keane into an irretrievably
adversarial position. Such a result would not serve any of our
interests. My lawyer tells me that nothing irritates a prosecutor
more than being the subject of what he perceives to be an
orchestrated publicity campaign. He also tells me that his
nightmares involve FOAs (Friends Of the Accused), invariably people
with good intentions, doing things on their own. I understand that
the issues involved in this investigation are of the greatest
importance and transcend my personal interests. Even so, I would
rather not turn an investigation into a full-scale federal
prosecution. I ask that everyone keep in mind that the government's
resources are limitless and that mine are not.
Speaking of resources, many of you have offered help, and I am
grateful. Those wishing to contribute financially or otherwise
should contact either me or Philip L. Dubois, Esq., at dubois@csn.org
or by phone at 303-444-3885 or by mail at 2305 Broadway, Boulder, CO,
80304. Mr. Dubois has just got on the Internet and is still learning
how to use it. Donated funds will be kept in a trust account, and all
contributions will be accounted for. If this whole thing somehow goes
away with money left in the account, the balance will be refunded to
contributors in proportion to the amounts of their contributions.
This message can be widely circulated on public forums.
Philip Zimmermann
prz@acm.org
303 541-0140
- --
End of Legal Net News, Volume 1, Issue 17
