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EFFector - Volume 4, Issue 0 - Accessing The NSA: John Gilmore Files suit With The National Security Agency

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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.]


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                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!


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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."


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         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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