John Gilmore Electronic Frontier Foundation PO Box 170608 San Francisco, CA 94117 +1 415 221 6524 voice +1 415 221 7251 fax gnu@toad.com email www.cygnus.com/~gnu web Carolyn Bartholomew Legislative Director Congresswoman Nancy Pelosi Washington, DC 20515 +1 202 225 4965 voice +1 202 225 8259 fax September 25, 1996 Subject: Crypto and Human Rights Dear Carolyn, Thank you very much for meeting with me regarding cryptography and privacy issues while I was in Washington on September 6th. It was particularly useful to be able to hear some of the arguments made in the Intelligence Committee on this topic and to be able to respond to them. You had a particular interest in the human rights aspects, and I mentioned the wide use of the free "Pretty Good Privacy" encryption software among human rights workers. I have enclosed some testimony by Phil Zimmermann, the author of "PGP", which includes statements by human rights workers in the Balkans detailing exactly how PGP has saved the lives of dissidents and human rights activists. Exports of software like PGP, to the Balkans and to everywhere else outside the US, are controlled by the State Department today, under laws and regulations that I am challenging in court as unconstitutional restrictions on the First Amendment freedom to publish software. The Clinton Administration is currently attempting to transfer these export controls to the Commerce Department, unconstitutional parts included. The worst part of today's State Department controls is that they allow the Executive Branch to censor publication of this privacy technology, without giving any recourse to the courts (unless a Constitutional violation can be proved). Rep. Pelosi could make a big difference in this in the next few days. The Administration is trying to sneak through an amendment to HR 361, the Omnibus Export Administration Act, that would completely eliminate judicial review of any action taken by the Commerce Department regarding export controls. For this to pass requires unanimous consent. I hope Rep. Pelosi will prevent it from being snuck through, and require the Administration to justify it in ordinary hearings. John Gilmore - September 25, 1996 - crypto and human rights - Page 2 Here's part of the text of the amendment: On page 127, at line 7, add a new paragraph (3) to Section 112(a) as follows: "Preclusion of Review. -- Substantive decisions of the Secretary and other officials on (i) whether to impose, expand, or extend export controls on any commodity or technology, (ii) whether and how to revise the Commodity Control Index, (iii) whether and under what conditions to grant, deny, or modify any export license, and (iv) any other questions of law or fact under this title (except as otherwise provided in subsections (b)-(d) of this section), shall be final and conclusive and no court shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise." As a lawyer, you know exactly what this means. No matter what the Commerce Department does to you, whether it's legal or illegal, whether it follows its own published regulations or breaks them, citizens can't take them to court to get justice. Suppose the Commerce Department stopped Phil Zimmermann from publishing his next program, PGPfone, which provides the same kind of privacy protection for phone calls that PGP provides for email and computer files. It wouldn't matter whether Phil had followed the published laws and rules for export. It wouldn't matter whether human rights all over the world were at stake. Phil would be in jail or slapped with civil fines, and no court in America would be allowed to even hear Phil's challenge to the Commerce Department's action. There is already a substantial provision in the current Export Administration Act that limits judicial review. This amendment eliminates it completely. This decision should not be made lightly. I hope Rep. Pelosi will stand up to stop this amendment from being adopted in the rush to adjourn. You can call me, or the Center for Democracy and Technology at +1 202 637 9800, if you need more information to stop this amendment. Thank you for your concern for the rights of humans everywhere, and for your interest in my concerns for the availability of privacy technologies to humans everywhere. John Gilmore [end] [attachments elided - mech@eff.org]