[liberationtech] on the traceability of circumvention tools

[Greg Broiles]

On Thu, Sep 16, 2010 at 1:04 PM, Behdad Esfahbod <behdad at behdad.org> wrote:
> Thanks Mehdi for starting this thread.  I'll reply in more detail later, but
> wanted to single-out this part:
>
> On 09/16/10 00:31, Mehdi Yahyanejad wrote:
>> However, circumvention tools are not illegal in Iran
>
> I'm fairly sure (and I mean 99% sure) that this is incorrect.  I'll dig out
> the laws tonight.

Whether or not the claim that circumvention tools are legal is
literally true, the question of whether or not certain behavior is
illegal is only part of the picture.

An important distinction to make when discussing privacy tools is
whether they're meant to provide security versus people with an
"intelligence" motive or people with a "forensic" motive.

Actors with an intelligence motive are likely to be uninterested in
perfect or near-perfect certainty about the information they gather;
even general tendencies and possibilities are useful in an
intelligence context, especially when they can be combined with other
intelligence. (If I have one data point that suggests there's a 10%
chance that Actor X is reading the Website of Forbidden Knowledge,
that tells me something. If I have 20 data points each of which
individually suggests that there's a 10% chance that Actor X is
reading the Website of Forbidden Knowledge, that tells me a lot.)

Information gathered for intelligence purposes will likely never be
disclosed publicly, and intelligence gatherers will often actively and
vigorously oppose disclosure because disclosure may compromise their
ability to use the same "sources and methods" to continue to gather
intelligence. Intelligence information is typically used to identify
or neutralize threats without "due process" or judicial review.

Actors with a forensic motive are concerned with collecting reliable
evidence which can be presented in a public trial or other procedure
to demonstrate noncompliance with articulable standards of behavior.

Individuals who are concerned about being identified as "enemies of
the state" and then being subjected to informal or extra-legal
violence or economic punishments from "intelligence" forces or
[para]military units, formal or informal, can't expect protection from
civil laws because their opponents/antagonists don't care about civil
law.

Nice people who grow up in modern Western societies and get liberal
arts degrees and wonder "why won't those mean people let those other
nice people vote?" can find it difficult to design for an environment
where the consequences of appearing to be associated with the wrong
people can be death for an entire family - and there will never be a
trial so arguments about whether or not something has been proven to
an appropriate standard of proof on the basis of admissible evidence
are meaningless.

-- 
Greg Broiles, JD, LLM Tax, EA
gbroiles at gmail.com (Lists only. Not for confidential communications.)
Legacy Planning Law Group
San Jose, CA
California Estate Planning Blog: http://www.estateplanblog.com
Certified Specialist- Estate Planning, Trust & Probate Law, California
Board of Legal Specialization