Sklyarov case shows business outweighs First Amendment
Crypto expert weighs into DMCA
Noted cryptographer Bruce Schneier has produced a damning critique of the way the Digital Millennium Copyright Act was used to jail Russian software researcher Dmitry Sklyarov.
Schneier, chief technology officer of Counterpane Internet Security, and inventor of the Blowfish algorithm, will argue in the next issue of his Crypro-Gram email newsletter that the Sklyarov case shows the DMCA is being used to restrict basic freedoms of speech.
A copy of his essay, which will be published on August 15, was sent by Schneier to the Register in order to raise awareness about the ramification for security research raised by the case.
Although Sklyarov was released earlier this week on bail of $50,000, the prosecution against him continues and Schneier's comments are interesting because they highlight some of the wider issues the case raises.
One of the main points Schneier makes is that provisions in the DMCA that allow for security research "which I and others fought hard to have included" are being ignored in the Sklyarov case and others, such as the DeCSS case against 2600 Magazine.
"What the DMCA has done is create a new controlled technology," Schneier argues. "In the United States there are several technologies that normal citizens are prohibited from owning: lock picks, fighter aircraft, pharmaceuticals, explosives.
"In each of these cases, only people with the proper credentials can legally buy and sell these technologies. The DMCA goes one step further, though. Not only are circumvention tools controlled, but information about them are."
Sklyarov was engaged in legitimate security research, Schneier said, but for highlighting the poor security of eBook readers, and working for a firm that develops software that "circumvents these ineffectual security systems" he ended up in jail.
Schneier recalls cases in the seventies when the government failed to get a restraining article preventing The Progressive publishing an article containing technical information on H-Bomb design.
He compares this to Sklyarov's plight which he said illustrates that publishing critical research on digital rights management technology used to protect electronic books is viewed as "more serious than publishing nuclear weapon design information".
This seems to go a bit far but makes the point that freedom of speech is going out the window in this case, or as Schneier puts it: "Welcome to 21st Century America, where the profits of the major record labels, movie houses, and publishing companies are more important than First Amendment rights."
Schneier compares the actions of the entertainment industry with the ill-fated attempt of the NSA to restrict access to encryption technology in the 1990s.
Both the actions of the NSA of the use of the DMCA by the entertainment industry are prepared to resort to unconstitutional methods, Schneier argues.
"The entertainment industry is fighting a holding action, and fear, uncertainty, and doubt are their weapons," Schneier writes, "The DMCA is unconstitutional, but they don't care. Until it's ruled unconstitutional, they've won. The charges against Sklyarov won't stick, but the chilling effect it will have on other researchers will." ®
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