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\title{\emph{So Much for Savages}:\\Navajo 1, Government 0\\in Final
Moments of Play} \author{Eben
Moglen\renewcommand{\thefootnote}{\fnsymbol{footnote}}\thanks{
Professor of Law \& Legal History, Columbia Law School.  A
slightly different version of these remarks was presented at the NYU
Law School on November 19, 1998.  Thanks are primarily due to Philip
Zimmerman, the author of PGP, for creating the current mess.  I wish
to express my appreciation to Yochai Benkler, for helpful conversation
and insightful analysis; and to the National Security Agency, for
being the source of much innocent, if expensive, amusement.
}\renewcommand{\thefootnote}{\arabic{footnote}}\\Columbia Law School}
\date{March 1999} \maketitle

Dame i gospodo, uva\v{z}ene kolege, po\v{c}astvovan sam va\v{s}im
pozivom da prisustvujem ovom zna\v{c}ajnom skupu. Danas \'{c}u
govoriti o ograni\v{c}enjina baziranim na ustavnim pravima regulacije
na\v{s}e komunikacije, od strane vlade, a u interesu signorsti. Ali na
kraju, kao \v{s}to \'{c}ete i vi sami shvatiti nemo puno toga da se
ka\v{z}e, samo na osnovu toga \v{s}to je na\'{c}in komunikacije
nov. Pre svega treba se re\v{s}iti pitanje jezika.  After all, every
act of linguistic communication occurs in a social context.  And the
single most important choice that we make when we communicate with one
another is the choice of the language in which we do so.

What I might have done by continuing to make my remarks this afternoon
in Serbo-Croatian could be construed, I suppose, as a cipher.  If
there are one or two people here who are native speakers of
Serbo-Croatian, my remarks become a message addressed solely to them,
apparently for the purpose of excluding everybody else.  Or perhaps I
have a confederate here this afternoon, with whom I conspire not to
make fun of your North American monolinguism but to redistribute your
property at gunpoint; in such an event then perchance my remarks were
a cipher intended for the advancement of criminal activity.  If there
were two listeners here---each a highly nationalistic member of the
fraternity of South Slavs, now dividing their language along an
imaginary border soaked in real blood---my remarks might have been
taken as some form of ethnic aggression.  It is, after all, the social
context of our communications that determines meaning, and not
something in the nature of the noises.  Much argument about the First
Amendment's relation to encryption regulation fails to take account of
this basic point: What the choice of language means depends entirely
upon the context of its use.

In the fall of 1993 I was representing Philip Zimmerman, the author
of a computer program called Pretty Good Privacy, in connection with a
criminal investigation by the United States.  Phil's program was the
first serious attempt to make sophisticated data
encryption at the highest technical level freely available to users of
all personal computers.  Naturally, once you grasp the mindset that
has dominated the rulers of the American Empire since the end of the
Second World War, this was too dangerous not to be illegal.  I was
talking to John Markoff of The New York Times, who was taking an
interest in these obscure events, and I said, "The right to speak PGP
is the right to speak Navajo."  I meet that statement from time to
time now in email signatures and usenet posts; it seems to have become
part of the Bartlett's Familiar Quotations of the crypto wars.  I chose
Navajo at that moment precisely because Navajo embodies the basic
social uncertainty that results from linguistic diversity.  The
Na--Den\'{e} languages are collectively an isolate.\footnote{The
languages comprising the family are Navajo, Chipewyan, and Tlingit.
The total population of native speakers is considerably less than
200,000, of whom all but 9,000 or so are speakers of Navajo.
\emph{See} \textsc{David Crystal, The Cambridge Encyclopedia of
Language}, Appendix III (1987).}  They bear, as one accident of the
evolutionary descent of human language over time, no demonstrable
relation to any other languages on Earth.

As it happens, speaking Navajo, throughout the lifetime of all living
native speakers, has been an assertion of cultural self-determination.
During the long process of the imperialization of the continent by the
United States, speaking Navajo---and other languages in other
pre-European families represented within our borders---has been the
central means of maintaining a cultural tradition apart from, and
often explicitly hostile to, the government exercising control over
the territory.

But in one of history's little ironies it has also, from time to time,
suited the United States Government to take advantage of Navajo as a
cipher---a story with which, I imagine, some of you are familiar.
Before electronic digital cryptography was developed, during the
Second World War, the United States military used Navajo speakers as
an encrypted form of radio communication in the Pacific theater of
operations.  What was in one context cultural self-determination and
an assertion of a human right against the United States Government,
was in another locale military-grade encryption.  So there we find
ourselves with the central, and regrettably mostly unaddressed,
argument concerning all the encryption regulations with which you
presently have been told there are no First Amendment problems.

May the United States government require English to be spoken in the
telecommunications network of the United States?  We could reduce the
federal budget substantially, releasing those translators whom the FBI
must keep locked in basements all over Quantico to render their
wiretap results useful to English-speaking agents.  Once, concerning
preventive detention of "terrorists"---they were also called Puerto
Rican separatist criminals, freedom fighters, whatever you
like---awaiting trial in Hartford for conspiring to commit
politically-motivated bank robberies, the United States Government
explained that two or three years of preventive detention was
necessary while the wiretap evidence was translated from Spanish to
Eng\-lish.\footnote{\emph{See} United States v. Melendez--Carrion, 790
F.2d 984, 1006 (Feinberg, J. concurring).}  The process would have
been much facilitated if it could have been made a crime to speak
Spanish while engaged in making telecommunications for the purpose of
planning crimes.  Unfortunately for the poor policeman such a statute
is facially unconstitutional.  A mere ``official English statute,''
requiring you to speak English not among yourselves, but with
government only, is in all likelihood unconstitutional, let alone a
regulation forcing use of a particular language in private
conversation for the convenience of eavesdropping spooks.

Litigation of the official English issue, in the event that another
such statute is unwisely enacted by a state legislature and a proper case
is presented to the Supreme Court, would be a stepping-stone to the
constitutional recognition of the freedom to speak PGP.  At present,
the discussion, when it happens at all, is dominated by foolish
arguments against our right to choose our language---including a
private or secret language---that will not stand the test of precise
definition.  Accordingly, they are presented imprecisely, and are hard
to respond to.  

First, it is said, secret speech is merely mechanical in its nature.
I'm not exactly sure whether that's a criticism of my Serbo-Croatian
or my PGP, but fundamentally after all, they are the same---modes of
communication chosen for their utility in a particular social setting,
in which the motive to be comprehensible to some and incomprehensible
to others is the same as that which lies behind many linguistic
phenomena, such as the argot of teenagers, the jargon of
post-structuralists, and the acronyms of bureaucrats.  The level of
technical intermediation between me and my listener is entirely
irrelevant, utterly without First Amendment significance, as you are
well aware.

Certainly, it can be declared, as it is in present regulations with
respect to ham radio communications, that I may not use some
particular segment of the government-administered public-trust
airwaves for encrypted communications.  And I won't at the present
moment address the question whether, once we establish the root
proposition that encrypted speech is protected, particular time, place
and manner restrictions on the encrypted use of the airwaves in
particular frequencies might withstand challenge.  Where we reserve
places (including spectrum locations) for speech to the public, it may
be reasonable to ask that speech occur in comprehensible ways.  But
could one constitutionally prohibit amateur-frequency communication in
Basque?

In any event, technical intermediation is not a ground of distinction.
The media of communication useful with ``natural'' languages all may
be used for encrypted language.  They may be employed in writing or
printing, by exchanges of telecommunications in fax or email, or the
exchange of vocalized speech live through the network.  And if some
natural languages, such as sign languages, are difficult to employ in
some technical settings, in absolute darkness for example, that does
not make it constitutional to control their use.

Or else it is asserted, with particular foolishness, that PGP is not a
``natural'' language unlike, say, Sumerian.  Certainly, you will
object, Sumerian is an isolate with no ascertainable history, unused
by anyone for thousands of years.  But if I encrypt data by turning it
into compressed transliterated Sumerian, for some ``PGP isn't
natural'' objectors, that should alter the constitutional analysis.
Meanwhile, the status of Esperanto and Gregg shorthand becomes just
one of those little mysteries to be disspelled by hand-waving.  When
it comes, however, to the private languages often invented by
identical twins and objects of durable interest to sociolinguists,
where we are undoubtedly observing a cipher in use between
confederates, the zealots of the distinction between natural and
artificial languages have nothing left to do but attend the funeral of
a theory killed by a fact, leaving us to get on with the real work.

The real work, then, begins in the recognition that PGP is as much a
language as Navajo from the First Amendment perspective.  Neither the
involvement of a computer in its transmission nor the fact that like
all language, ``natural'' or ``artificial,'' it is an artifact of
human intelligence changes our right to choose to speak it.  Precisely
because our choice to employ a language comprehensible to some and
incomprehensible to others expresses our political, social, and
personal intentions as well as the manifest content of particular
speech acts, no system of free expression can tinker with our right to
choose one language over another without risking fundamental
commitments that the system itself values.

So linguistic regulation in our culture cannot be subjected to mere
niggling as-applied challenges.  For the reason usually advanced for
extended rules of standing in First Amendment cases, the ``chilling
effect'' (which is known, when cherished for its positive value by
criminal law theorists, as ``general deterrence'') of constraining
language choice makes it entirely unsuitable in our multinational
democracy.  Here, unlike the other empires of our enlightened time,
one may vote in a language other than the dominant one, and States
have an obligation to make such ballots available where their refusal
unduly burdens political choice.  For reasons so basic that they can
await no demonstration of particular individual harm---and which brook
no justification on the grounds that the speaker is a bad
person---rules forbidding use of Navajo, French, Pittman, Esperanto
and PGP are facially unconstitutional.

But, the police comedian rejoins, we're not seeking to forbid use of
PGP, though we entirely reject the First Amendment argument on grounds
we can't put clearly because the evidence is classified.  We just want
you to use our favorite form of escrowed encryption.  No, no, not that
form of French---use the one we understand!  Even if that means a back
door in the world financial system.  Even if that means when in Iraq
you have to escrow your keys with his secret police.  Or else that the
international escrow agents have to honor his subpoenas.  For the
policemen, the latter isn't a problem, while for the spook that would
be unquestionably destructive.

In fact the whole conversation, however promisingly full of ripe and
fruity controversy between realists and rights-mongers, is futile.  As
I shall show in a moment, strong unescrowed end-to-end encryption of
the net is available and is here to stay.  Technology does affect
policy, to reassure a couple of other participants this afternoon, who
have suggested some doubt on the subject.  The printing press affected
policy, and so has the movement for free strong encryption software.

Others are indeed right to claim that government regulation futile
in the long run is not therefore unconstitutional in the present.
Government may take a step at a time even in directions potentially
nugatory.  What is unconstitutional about encryption regulation of any
blanket kind---mandatory escrow, outright bans, maximum key lengths,
forbidden algorithms, for\-cibly classified research, and so on---has
nothing to do with factual futility.

But that doesn't make futility unimportant.  Because futility is an
outgrowth of individual choice, and is therefore a consequence of
democratic choice.  Which is where you come in.

When people discuss encryption controls, they normally do so as though
what needed to be controlled were the algorithms used and the lengths
of the keys.  ``Strong'' encryption means good algorithms using large
keys.  So strong encryption is what some of us want people not to use.
Here, at this small point, is another source of conflict between the
policemen and the spooks.  The spooks, concerned with the content of
communications and unconcerned with their admissibility in court, want
weaker encryption or keys that are easy to steal.  Police, for whom
large-scale code-breaking is economically out of reach and whose
evidence must be admissible in the end, want someplace to serve a
warrant or a subpoena.

But neither their agreement nor their disagreement is as important as
what they do not discuss at all.  What really makes their activities
futile in the end is explosive increase in the volume of encrypted
material.  Today, the global communications system operates almost
completely in the clear; the bulk of secret communication is small
enough to allow the spooks to concentrate all their pitiful attention
on it.  Because almost all communications activity is cleartext, very
little of it is anonymous, so wiretaps and subpoenas for particular
phone lines will mostly get the policeman what he wants.  But if you
all decide to turn the net into an encrypted medium, globally, their
methods of operation, both spook and cop, become almost utterly
worthless.

Let us take the poor, bereft spooks first.  The American Empire has
been built since mid-Cold War on our power to intercept all the
telecommunications of our friends, our enemies, and everyone
else.\footnote{Except, of course, US nationals living in the United
States, on whom they never, never, never....}  This purpose has
required harnessing enormous and profoundly expensive quantities of
computing power.  But the power necessarily grows linearly with the
volume of communications for which its services are necessary.  If
encrypted traffic on the net were to grow from less than 1\% of the
total to 100\% of the total (what we would call an end-to-end
encrypted network), NSA would need to increase that portion of its
budget by two orders of magnitude, which is out of the question, or
immediately improve, without additional capital expense, analytical
computation by two orders of magnitude more than required to keep pace
with basic improvements in cryptography, which is unlikely.

For the policemen, too, the lot of the listener in an end-to-end
secure net is not a happy one.  Although current network
design---which considers anonymity an unimportant property and
actively works against it---would not be fundamentally altered,
anonymity would be practically possible whenever desired, as it will be
all the time by people who wish to evade policemen.  They too will
lose in the actual new world.

But is an end-to-end encrypted net inevitable?  After all, the design
of Internet 2 has been hung up on this issue for years, thanks to
export controls and the deliberate obscurantism of the government
agencies that present ghostly reverberating versions of NSA positions.
But again, as with PGP, the free software world has provided the
answer.  The whole goal of those of us who have been seeking both
technically and legally to secure unregulated and unregulatable
encryption since the beginning of the 1990s was to bring about the
time when the network would be widely and strongly encrypted---in
which the volume of encryption would have passed the point at which it
could be reversed.  I am here to tell you, despite the rather
pessimistic statistics you have heard today, that the time is here
already.  I use a supposedly-obsolete 133MHz notebook computer; I
bought it for \$800.  It is, from anyplace in the world where there is
a twisted pair of copper wire, a secure telephone.  It also uses the
program called Secure Shell, SSH, that makes end-to-end encrypted
connections with other computers all over the network.  SSH is
available free to anyone who wants it.  A commercial version is even
available for people who use Microbrain software.\footnote{Microsoft
is a registered trademark.  Microbrain is a fact.}  Thus, equipped
only with free software available to anybody on the planet and without
any special hardware, a very cheap computer, apparently much inferior
to ones you use yourself, can provide strongly encrypted
voice and data communications, transparently and without appreciable
performance loss, everywhere.

Thus the question of the technically possible is a settled question.
The only issue is whether you all will decide you want to use it.  If
you decide to make yourself part of the net's encrypted traffic, that
completes the revolution and the discussion is over.  The spooks and
the cops will have to get used to the brave new world, and while they
will complain about it, and warn themselves silly about the terrible
consequences of a freedom you cannot resist, those of us who know the
difference between what \emph{is} true and what we \emph{wish} were
true will move on to other questions.

Of course, if the futility of regulation depends on individuals'
choice to be part of the process, then the outcome---like all
democratic outcomes---remains in doubt.  I'm betting on you.  Your
power to change the world depends solely upon what, in a democracy, is
basic: that we ensure you not merely the right to vote, but also the
right to express yourself.  A right valued by civilized man and
dangerous to tyrants only.  Ah, but the policeman are not tyrants.
Quite right, they're not.  They are not tyrants until, like
King Canute, they decide they can command the ocean, at which point a
better definition of tyranny cannot be afforded you.

So there you have it: you're the ocean.  They will command you or they
won't.  The choice will be yours.  I think you've a First Amendment
right to choose.  I expect to carry that First Amendment right, when
the time is ripe---which is not in these piddling little cases we are
presently having---into the Supreme Court and I expect to see it there
soundly vindicated at enormous apparent social cost.  But you must not
allow the estimation of the cost to be conducted in the way that the
policemen estimated for you: "Ah, we shall have this and this and this
nuclear terrorism, we shall have that and that and that pedophilia."
This form of calculation is very scary, but it is fundamentally and
flagrantly wrong.  A truly encrypted network, a secure
telecommunications environment embracing the whole planet, prevents
more crimes than it causes.  It prevents all the financial fraud
that is inevitable in a world of back-doored financial communications,
where he who steals the keys steals everything.

It also prevents fingernails being ripped out, not to mention worse
things being done, by nasty people all over the world who have a
tendency to tap telephones and torture people based on what they hear.
When the television center at Vilnius was under attack by Soviet
troops in 1991 one of the beta testers of PGP, a native of an adjacent
Baltic republic, wrote to Phil Zimmerman, ``You know, it may be
that the old times are coming back again.  But now we'll have
PGP.''  At the present moment, in northern Thailand, people whom we
call ``freedom fighters,'' and whom Myanmar's SLORC regards as terrorists
subverting true justice and order, are learning to use PGP on cheap
laptops.  They are securing the communications infrastructure of the
revolution that will eventually free Burma.  Now, you can regard all
that as totally unimportant; the crimes of political repression
elsewhere are not your problem.  Your problem is just money laundering
by cocaine dealers in Miami.  But in the world of the net you must
take a more global picture than that.  You must remember that the
policemen you are disappointing are not just our good policemen but
also other people's quite evil policemen who commit crimes too.  And
when you remove from them the possibility of committing those crimes,
you are preventing a lot of evil.

So we must see that the balance we strike when we destroy all control
over encryption is rather more complicated than the policemen let on
when they talk about the crimes they would not have prevented without
wiretapping.  It is also about the crimes we will prevent when people
may speak freely, everywhere, all the time.  The good that will come
from that is hard to overestimate.  But the constitutional environment
is quite simple.  And, as I said at the beginning, though you might
not have been able to understand it in the language I was using at the
time, there's really nothing very new to say just because the methods
of communication are new.  The methods of communication are new, but
the principles---in whatever language you express them, and it's your
choice---are very familiar indeed.

I don't doubt that there will be downsides.  You should accept the
truth that harms will be caused, as harms are caused by free speech
all the time.  But don't let yourself be panicked about this.  The
world of the twenty-first century will be more free, and will continue
to be, as the spooks often say, ``a tough neighborhood.''  Indeed,
some bombs will go off; there will be, in Stewart Baker's signature
phrase, "some mangled, burnt bodies."  You will notice that there are
already.  But fewer of them will be in Iraqi prisons; none of them
will ever again be in a gulag or Lager maintained by a KGB or SS state
with a tap on every telephone.  And of that you should be very proud,
because it is we who will have made it possible.

\end{document}