That would backfire economically and politically I think, especially long term. Let them ban it if they are so foolish.

They wouldn't need to outlaw or ban all cryptography, only the particular communication systems that don't have "lawful intercept" capability. There are already laws for this on the books, although they've generally been interpreted in such a way so as not to apply to non-telephony products so far.

TBH it probably wouldn't require that much Orwellian apparatus; you just make the software slightly harder to use than it already is today, and network effects basically ensure that only people who are really interested in communications without government interception (who the government is presumably interested in) are using it. Then you can start doing endpoint attacks, deanonymization via compromised downloads, etc.

The government's -- and I don't mean just the U.S.'s, but most large governments', I think -- ideal for Internet communications is something similar to the telephone network circa 1975. They're fine with privacy between one individual and another (i.e. keeping your conversations private from your neighbors), but they aren't going to be satisfied with any technology that prevents wiretaps by state-controlled apparatus.

I am not exactly bullish on the ability of technology or technologists to resist this, over the long run. Unless there is a widespread and overwhelming realization on the part of individuals that governments shouldn't have this ability, and I don't think that consensus exists even in the liberal West if you frame the question even moderately advantageously to the government, then they will get it. There will always be pockets of noncompliance, and an ensuing cat-and-mouse game, but the steady state will likely be one that deters mainstream usage.

And if we really are seeing the end of Anglo-American geopolitical dominance in favor of countries whose political systems emphasize stability and harmony over individual rights and dissent, then it becomes very difficult to see that consensus ever manifesting itself at a meaningful global level.

They license it to businesses that cooperate with the government. It wouldn't backfire, honestly.

The fact no one has done anything major about any of the other surveillance state BS is proof enough of that.

Well, one could argue that rise of Trump, Bernie, backlash against mainstream media etc are partially due to the surveillance state BS.

In any case, there are still the negative economic consequence which important alone, but also affect politics.

> Well, one could argue that rise of Trump, Bernie, backlash against mainstream media etc are partially due to the surveillance state BS.

http://www.cnn.com/2016/06/15/politics/donald-trump-muslims-...

> Trump doubles down on calls for mosque surveillance

http://thehill.com/blogs/ballot-box/presidential-races/26167...

> Trump said Tuesday that he would be "fine" with restoring provisions of the Patriot Act to allow for the bulk data collection, something candidates such as former Florida Gov. Jeb Bush have also called for that was banned with the passage of the USA Freedom Act, which Cruz supported.

Well I don't think I'm going to agree given the only person who made it to the GE is a guy who supports surveillance.

RSA, ATT, and Verizon all took bribes from the NSA to screw over their users. At least one worked with DEA as well. These were leaked in prominent media with exposure to millions of American consumers and business people. So, let's test your theory:

RSA Net Income (2011-2015): 426M 320M -306M -115M 79M

Verizon Net same period: 2.4B 875M 11.5B 9.63B 17.88B

ATT Net same period: 3.94B 7.26B 18.25B 6.22B 13.35B

RSA took quite a hit but it could be market as well. I don't know what it's status was pre-Snowden but much of hit comes during year of the leaks. Revenue dropped a billion or two with profits turning to losses but rebounding into $75 million in 2015. Verizon and ATT are doing great. Other companies that are managed profitably that cooperate tightly with Washington are Microsoft, IBM, Google, and Oracle. Their net incomes are in the billions.

So, I think the market data indicates you're wrong even in the worst scenario for working with the surveillance state. Also, the more lock-in the business has, the better it does despite any evil choice it makes. Rule of thumb.

It already is for exports unless you get license. They probably approve it but they left high-assurance security + a bunch of other stuff classified as munitions. The "victory" of the Crypto Wars was for mass market stuff that's basically insecure.

Detailed analysis with appropriate links:

https://www.schneier.com/blog/archives/2014/11/the_return_of...

Note: I could be really misreading the material due to not being a lawyer or pouring through regs all the time. I think it says all this stuff is still 5A002 (munition) outside the exemptions they compromised on.

Ex post facto laws are unconstitutional, and something like this (where millions would instantly be in violation) would absolutely, 100% end up in front of the Supreme Court.

Some examples of when a law can be retroactively applied:

When the Securities Exchange Commission decides that something is a security, it retroactively applies the civil and criminal compliance back to 1934 because it was always a security. I mean, you can argue it in front of a judge if you want, but thats how they established jurisdiction.

Same goes for discretionary tax law at the IRS

or any regulatory agency

I agree its a problem, but if you live your life under your version of reality it is easy to get railroaded in the dragnet

> When the Securities Exchange Commission decides that something is a security, it retroactively applies the civil and criminal compliance back to 1934 because it was always a security.

That's not a retroactive application of the law. If they are correct in their interpretation of the law, it was already the law. If they are incorrect, the courts will not allow it (whether the enforcement concerns acts before or after the determination by the SEC.)

The issue is that they, and other administrative organs, often change their interpretation of what the law "has always meant". Particularly irksome when they issue private letters with differing interpretations and then override all of them with subsequent administrative rulings.

The ATF is particularly notorious for this.

> The issue is that they, and other administrative organs, often change their interpretation of what the law "has always meant".

Yes, and if that conflicts with what the courts believe the law has always meant, those decisions won't survive contact with the legal system. An ex post facto law is a law creating (or enhancing) criminal penalties for acts that exist before the law is passed. Changing administration interpretations are like changing prosecutorial priorities (and the former comes with a lot more notice and specificity than the latter) -- they only have effect so long as they are within the bounds of what the courts will accept was covered by the law when it was passed.

The courts will accept a hell of a lot, due to Chevron deference. Statutes will use a term (eg, "readily convertible" or "replica"), and the administrative agency will decide this term means different things depending on the day of the week and which party is in power. All it has to be is "plausible", not consistent, and the courts will defer to their interpretation.

https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....

Just a note, there is a possibility that the person you replied to is comfortable with circular logic about why the behavior is not controversial under the supposition that "the law is the law." This may be a semantical discussion about why it is not "retroactive" in a legally damning sense, despite the similarities of the distinct ability to civilly and criminally sanction somebody for something they did in the past. Long before representatives of the government decided that person's prior actions would fall under their jurisdiction.

Not quite, SEC and other regulators do not really have the force of law, more the force of licensing and permissions

If you are a vast major bank and don't like the SEC you can try not being allowed in the doors of the private buildings of the NYSE, LSE etc.

They have the power not of law but of losing billions

That just goes to show that the Constitution, while imperfect, is better than what we have now.

I'm not sure what you mean, all of those agencies are formed under the constitution and the systems that support them are also abiding by the constitution

The Constitution states, 'no Bill of Attainder or ex post facto Law shall be passed'; to the extent that those executive agencies' enabling legislation permits ex post facto regulations, that legislation is unconstitutional.

The Government can simply ban the use of that software without a license set at a future date (i.e. 1/1/2017).

New Regulation -> Future Date -> Ex post facto claims don't happen.

That is the process my original comment intended to imply.

They're definitely not. They've resisted due process for some time. NSA's reps even argued in Jewel case that judicial branch shouldn't be allowed involvement at all. Which is sort of the status quo for intelligence agencies and courts. Prosecutors similarly have a combo of broad powers, immunity in common abuses, and virtually no accountability. The government as it exists certainly doesn't run in the framework of the Constitution except in a partial way.

But they can instead make it illegal to use such software, which would not be an ex post facto law (it would only apply to uses of said software after the law was enacted).

IANAL though, so I digress.

Except for when they aren't. There are several examples of ex post facto laws that have been upheld. The Supreme Court would definitely get involved.

It isn't ex post facto if it has an effective date of 1/1/2017, regardless of what came before.

Well, it was illegal to smoke marijuana everywhere in the US for several decades. That didn't stop people from doing it. And now it's becoming legal.

Yes. However, that doesn't change the fact casual users that are largely harmless ended up losing years of their lives and had their ability to earn a good living to support themselves casually destroyed in the process.

True, sadly enough. But my point is that the Drug War didn't stop people from doing what they wanted to do. Unjust laws tend to get ignored.