This is a copy of my now-available MicroTimes report of a visit from federal investigators, three days after I publicly critized the FBI and NSA about a related matter, in an op-ed in the San Francisco Examiner.
Following the report, there are implications as to how similarly-outraged citizens might take effective action to halt the gross miscarriage of justice herein detailed.
And there are supplementary thoughts following my visit with a federal prosecutor who, like the guards at the concentration camps, is just doing his job.
When I finished it, I could no longer see the keyboard. I was crying - with frustration and rage and shame that MY nation and MY government could be doing this.
--jim
[Written on March 2nd, this is appearing in the April, 1995, editions of MicroTimes, with total circulation exceeding 230,000 in California.]
I write this today, March 2nd, because I envision the possibility of somehow being enjoined from speaking or writing about this, by a federal grand jury in San Jose, next Tuesday.
On February 26th, a similar op-ed of mine appeared in the Sunday edition of the combined San Francisco Examiner and San Francisco Chronicle, emphasizing the unnecessary danger and billions of dollars of losses resulting from the government's preoccupation with protecting and greatly-enhancing its evesdropping capabilities.
Three days later, two U.S. Customs Special Agents appeared at my home, unannounced, and soon handed me a federal grand jury subpoena. I am, "commanded to appear and testify before the Grand Jury of the United States District Court," on March 7th.
The subpoena was dated February 27th - the first workday after the Sunday Examiner's op-ed piece.
Whoever said government is inefficient?
I laughed and said, "Oh - okay, come on in," and led them up to my office, grabbing a tape-recorder along the way.
I sat down and - prominently turning on the recorder - said, without being confrontational, that I'd like to record the interview.
Woppps! - flag on the play. They said they would want to take a copy of the tape with them when they left. That was fine with me, so I turned off my recorder and went for a second recorder from my car.
Drat! - I wish I'd left the recorder running, because when I returned, they had decided they needed approval from Assistant U.S. Attorney Bill Keane, the AUSA in charge of investigating Zimmermann and PGP.
They called Keane. He was out. They left a message, then said that - in the absence of his approval - they would have to forego the interview, and made motions to leave. I was curious about what they wanted, and it occurred to me that I probably couldn't record my testimony before the grand jury, anyway. So after some discussion, we agreed not to record. In the process, they offered to allow me to copy their interview notes - which I thought was a rather-neat show of good faith. However, before we began, the senior agent
looked at me with a moment of clear hesitancy and suspicion, and asked several times that I verify that our conversation was not being recorded. I did, pointing out that it would be a criminal misdemeanor - in California - if I recorded them in this private place without their knowledge.
Part-way through the interview, Keane returned his agent's call. I asked if he say why we couldn't record the interview, with both of us having a tape. He said only that he didn't wish to have it done.
Apparently we citizens aren't the only ones who are paranoid.
On April 10, 1991, shortly after the Gulf War, a message from WHMurray@DOCKMASTER.NCSC.MIL cascaded across the computer nets, warning about one sentence in buried in a massive "anti-terrorism" bill authored by Senators Biden and DeConcini. Their Senate Bill 266 declared, "It is the sense of Congress that providers of electronic communications services and manufacturers of electronic communications service equipment shall ensure that communications systems permit the government to obtain the plain text contents of voice, data, and other communications when appropriately authorized by law."
Bill Murray, then a computer-security consultant to the NSA, wrote:
"The referenced language requires that manufacturers build trap-doors into all cryptographic equipment and that providers of confidential channels reserve to themselves, their agents, and assigns the ability to read all traffic.
"Are there readers of this list that believe that it is possible for manufacturers of crypto gear to include such a mechanism and also to reserve its use to those "appropriately authorized by law" to employ it?
"Are there readers of this list who believe that providers of electronic communications services can reserve to themselves the ability to read all the traffic and still keep the traffic "confidential" in any meaningful sense?
"Is there anybody out there who would buy crypto gear or confidential services from vendors who were subject to such a law?
"David Kahn asserts that the sovereign always attempts to reserve the use of cryptography to himself. Nonetheless, if this language were to be enacted into law, it would represent a major departure. An earlier Senate went to great pains to assure itself that there were no trapdoors in the DES [federally-adopted Data Encryption Standard]. Mr. Biden and Mr. DeConcini want to mandate them.
"The historical justification of such reservation has been "national security;" just when that justification begins to wane, Mr. Biden wants to use "law enforcement." Both justifications rest upon appeals to fear.
"In the United States the people, not the Congress, are sovereign; it should not be illegal for the people to have access to communications that the government cannot read. We should be free from unreasonable search and seizure; we should be free from self-incrimination.
"The government already has powerful tools of investigation at its disposal; it has demonstrated precious little restraint in their use.
"Any assertion that all use of any such trap-doors would be only "when appropriately authorized by law" is absurd on its face. It is not humanly possible to construct a mechanism that could meet that requirement; any such mechanism would be subject to abuse.
"I suggest that you begin to stock up on crypto gear while you can still get it."
The net went ballistic over this Orwellian mandate.
But public-key crypto using any reasonably-robust key-sizes is reputed to be uncrackable. And intentionally building a back-door into a beautiful crypto implementation is about like welding a tractor tire on the back of a classic '63 Corvette - obscene!
Kelly Goen, located in the San Francisco Bay area, was also interested in crypto. He and Zimmermann became acquainted - as is common among technoids with similar interests. In that context, Zimmermann apparently gave Goen a copy of PGP - also common behavior among us propeller-heads.
S. 266 would also prohibit PGP - at least in any respectable form.
So - with more than a little of the spirit of freedom that is the heritage of all Americans - and the help citizens "stock up on crypto gear while you still can," it was decided to make this privacy protection tool available to everyone, immediately. Goen would upload copies - fully annotated sources, binaries and documentation - to as many BBSs (bulletin board systems) and host-computers around the United States as possible. Zimmermann agreed - especially since S. 266 would soon outlaw PGP.
He also called me - as a MicroTimes columnist, and probably because I had organized the recently-completed First Conference on Computers, Freedom & Privacy, or maybe because of my comments on the net critical of the S. 266 mandate.
I had several conversations with Goen, and later with Zimmermann - who seemed more passive about the project. Now, four years after the fact, this is re-constructed from random notes I took at the time, plus my recollections - some of which remain quite vivid.
He was driving around the Bay Area with a laptop, acoustic coupler and a cellular phone. He would stop at a pay-phone; upload a number of copies for a few minutes, then disconnect and rush off to another phone miles away.
He said he wanted to get as many copies scattered as widely as possible around the nation before the government could get an injunction and stop him.
I thought he was being rather paranoid. In light of the following, perhaps he was just being realistic.
The allegation seems to be that, since he permitted someone else - over whom he had no control anyway - to upload PGP to some Internet hosts inside the United States, Zimmermann thus exported this controlled munition!
This ignores the fact that most of those same Internet hosts also have DES crypto software from AT&T, Sun, SCO and BSD, part of their standard domestic Unix systems. The DES is under the same export prohibition as PGP. The same is true for RSA's public-key crypto tools that reside on thousands of Internet hosts around the nation.
This bizarre lunacy also ignores that public-key was published, worldwide, fifteen years ago, and is available from numerous foreign software competitors including entrepreneurs in former Easter Bloc countries - as is the DES.
Based on what they told me at the time and everything I've learned since then:
Zimmermann never even uploaded PGP files for public access.
Goen studiously limited his uploads to U.S. systems, as permitted by law and routinely done with identically-regulated AT&T and RSA software.
They certainly didn't care about exporting PGP. Hell, most of the rest of the world already purchases public-key products from numerous vendors except U.S. companies.
They did want to pre-empt S. 266 before it became law - just as millions of people do all the time regarding all sorts of pending legislation. And the offending mandate was later deleted from S. 266, anyway.
Zimmermann and Goen wanted to protect this nation's citizens. S. 266 wasn't threatening other nation's citizens; it was threatening Americans!
If that's what they want, they should investigate and prosecute AT&T or Sun or SCO or RSA. Each makes millions peddling systems to U.S. Internet host-owners that include identically-controlled crypto modules, particularly including RSA public-key packages that are at-least as powerful as PGP.
But thugs don't pick on targets that can defend themselves. Goons go for the frail and weak and helpless - like Phil Zimmermann.
Maybe this is a rogue prosecutor trying to make a name for himself. But apparently Keane can't seek a grand jury indictment for this "crime" without clearance from the Department of Justice in Washington.
Maybe it's just our government wasting thousands of staff hours and millions of dollars to publicly flog Zimmermann as a lesson to any other pissant citizen who dares to do what AT&T, Sun and RSA can do with impunity.
This appears to be nothing less than an arrogant, oppressive government using all of its might and all of its power to flail and torture one poor citizen, to teach him that he is dirt and intimidate everyone else.
Is this what our nation has become? Is this the America we want?
As I write this, and try to maintain some slight semblance of reason, about half the time I think the timing was accidental - and half the time I think I'm being naive.
I feel threatened and intimidated - and furious and outraged that it should be happening in MY nation, prosecuted by MY government.
I cry for what Phil Zimmermann must be going through. He had little financial resources to begin with; this has already cost him, dearly. For almost two years, he has been under the horrifying threat of wasting all of his assets including his home, just to defend himself against the outrageous abuse of a federal government that will go to any expense to "win."
And if Zimmermann looses, he goes to prison for years of mandatory incarceration. When he comes out, his young daughter will be a teen-ager. All because he dared to write a cryptographic program that the government couldn't crack, that someone else made available to U.S. citizens.
If there is any justice remaining in this nation, this screams out for immediate redress!
Folks who care can send much-needed donations to the Zimmermann legal defense fund in care of his attorney, Phil DuBois, 2305 Broadway, Boulder CO 80304; 303-444-3885; dubois@csn.org.
He founded InfoWorld, was founding host of PBS' "Computer Chronicles," founding editor of Dr. Dobb's Journal, and has chaired various computer and mathematics organizations. He holds graduate degrees in computing (Stanford), medical information science (UC Medical Center) and mathematics & statistics, began working as a programmer in 1968, and was a mathematics teacher and professor for ten years before that. He also serves on Autodesk's Board of Directors.
The prosecutor knows this; I have discussed it with him.
But there is no attempt to indict AT&T, Sun, H-P, SGI, SCO, BSD, etc. There is no attempt to prosecute MIT or CompuServe for continuing to make what Phil created freely available via the Internet and CPN. After all, Compu$erve has a warning in capital letters saying that CI$ customers outside of the U.S. should not download it. ViaCrypt is not being investigated for selling PGP throughout the nation - not even to computer stores located near the Iranian or North Korean Consulates. MIT restricts access: A PGP recipient must first type "yes" to four questions, and may have to connect to MIT through one of the more-than-two-million Internet host-computers in the U.S., by telnet if they are outside the nation.
But PGP's creator - who is not known to have uploaded *any* copies for public access - and his aquaintance, are the only ones being investigated.
Most of the remainder of this edition of GovAccess details what I know - and opine (!!) - of why Washington is spending hundreds of thousands of tax-dollars and thousands of limited staff hours of experienced investigators and talented legal professionals on this lunatic persecution.
There are at least three members of this grand jury who have Internet accounts, according to cryptographer Charlie Merritt who was testifying before them and asked them. And the grand jury has been assembled in the heart of Silicon Valley.
The best address that I can think of for the federal grand jury - composed of concerned citizens - from which Keane is seeking this indictment, is:
I'm told that there are about 25 members, and I doubt that they have a copier in the grand jury room.Fore-person and Members Federal Grand Jury in the Zimmermann/Goen case 280 S. First St. San Jose CA 95113
I don't know whether Keane would be violating postal regulations if he opened and withheld from those addressees, first-class mail addressed in this manner. I have no evidence to believe that he would withhold it.
My assumption is that Keane is being directed to persecute
He's a good lieutenant. Personally, I think he's doing what he's told.
Keane's most-senior superior in the Department of Justice is:
Keane's ultimate superior is:
But BYTE columnist and sci fi writer Jerry Pournelle has pointed out that
that's absolute nonsense.
So what do *you* think?
Don't tell me - tell the folks, above, who *can* make a difference.
--jim
As soon as we began, he volunteered that he didn't anticipate that I had
any exposure and didn't consider me a target of their investigation. I
appreciated that. He also said he would tell me if that changed. Oh.
We met for about four hours (folks rarely accuse me of brevity). I was
completely candid, and told them all of the above and lots more - including
most of the opinions ... with which he was very patient. <grin>
I found Keane reasonable, attentive, even-handed and probably a very good
prosecutor (and we *need* good prosecutors). However, my impression was
that he had rather-limited understanding of the nets - e.g., he'd never
even heard of Fidonet, and seemed convinced that the primary way that PGP
was distributed was by USENET from the WELL! (He said that's why they are
pursuing the investigation in California rather than back in Colorado.)
I continued to be favorably impressed by the Customs investigators, and I
honestly don't think Keane is one of the bad guys - though I suspect that
he may be too focused on on the nitty-gritty of seeking evidence for
prosecution, and too-little focused on seeking principled, equitable
*Justice*.
The fact is, I honestly feel a bit sorry for him - because I think he's a
good prosecutor, and I believe Washington is telling him to pursue this
case, which is probably turning into a public relations debacle as its
capricious injustice becomes more and more clear ... and it's Bill Keane's
name and reputation that is going to be trashed.
The real responsibility lies with the anonymous Washington gang, who never
have to face their victims, who are blindly intent on intimidating all of
us by making an example of Zimmermann - just like street-thugs always pick
the frail and weak to terrorize, so as to intimidate a community into
submission.
The only difference is that this time, the community can't turn to the
law-enforcement officials for help.
I told Keane that, okay, WE GOT THE MESSAGE.
God!, I'm ashamed of my government's myopic, self-serving leadership.
Attorneys are the gun-slingers of the 20th Century - but only their clients
get shot.
Mo' as it Is.
My belief is that USAG Reno *does* have the authority to stop this idiocy.
United States Attorney General Janet Reno
Department of Justice, Room 5111
10th St & Constitution Ave NW
Washington DC 20530
fax/202-514-4371
His official, public response would undoubtedly be that he should not get
involved in an ongoing criminal investigation.
President Bill Clinton
1600 Pennsylvania Ave
Washington DC 20500
fax/202-456-2461
president@whitehouse.gov
Much of Pournelle's June column in BYTE will focus on this case. Pournelle
is urging that the President simply pardon Zimmermann for any possible
wrong-doing, and let him get back to his family and on with his life.
[announced here with Jerry's explicit prior permission]
Later Thoughts - After Meeting with Asst US Attorney Keane on Friday, 3/10
On Monday, 3/6, before I was to appear for the grand jury on the following
day, I finally reached Keane. He agreed that I did not need to come down
for the grand jury (now why do I think he wouldn't want me speaking to his
lap-dog? :-), and we agreed instead, that I would come in for an interview
with him and his agents at the end of the week.
Trial attorneys - prosecutors and defense - too-often seem more interested
in "winning" the trial "game" than they are interested in Truth or Justice.
Too-often, they excuse such immorality by saying that the costly, abusive,
terrifying adversarial system will assure Truth and Justice.
--jim
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