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Date:      Sun, 26 Sep 1999 10:26:37 -0700 (PDT)
From:      "Rodney W. Grimes" <freebsd@gndrsh.dnsmgr.net>
To:        peter@netplex.com.au (Peter Wemm)
Cc:        mike@smith.net.au (Mike Smith), dwhite@resnet.uoregon.edu (Doug White), billf@jade.chc-chimes.com (Bill Fumerola), cpiazza@FreeBSD.org (Chris Piazza), chat@FreeBSD.org
Subject:   Re: cvs commit: ports/net/nstreams - Imported sources
Message-ID:  <199909261726.KAA10064@gndrsh.dnsmgr.net>
In-Reply-To: <19990926154411.41C871CA7@overcee.netplex.com.au> from Peter Wemm at "Sep 26, 1999 11:44:11 pm"

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> Mike Smith wrote:
> > > On Sat, 25 Sep 1999, Rodney W. Grimes wrote:
> > > 
> > > > We have just removed BPF from all standard deployment kernel config files
>     ,
> > > > Sigh :-(.
> > > 
> > > What, did you just break DHCP again?
> > 
> > No, Rod is just having another panic attack.  Don't worry about it.
> 
> IMHO, BPF is no more "illegal" than an Ethernet card that can be put in
> promiscuous mode.  When they stop making promisc-capable Ethernet cards
> *THEN* (and only then) I'll worry about BPF.

From my reading of the code an Ethernet card with promiscuous mode features 
does not qualify as a wire tapping device due to the fact that the primary
function of an Ethernet card is not to listen to everything on the
wire.
BPF on the other hand, or worse, a lanalyzer, is specifically designed
designed for this purpose.

The law speaks about ``primary purpose'', in the case of an Ethernet
card it is not the primary purpose.  In the case of BPF/tcpdump
it is the primary purpose.  Now one could expand the view that BPF
is a part of the kernel, and say that the primary purpose of the
kernel is not to listen to traffic and probably get away with it.

_But_, and this is a big _BUT_, something like net/nstreams is primary
designed to listen to conversations.

BPF still scares me quite a bit, but then we have a situation quite
different than most others, in that we are governed by 47 USC, and
many more Federal and State laws than most other businesses due to
being a licensed carrier.  I know on our telco switching we have
to demonstrate that it requires a court order before a trap and
trace or pen register can be applied to a circuit, or in the case
of the same function performed by a switch under software it has
to have very stringent safe guards to insure that the software
is only activated under very stringent conditions.

The old days of using an inductive pickup handset are long gone,
to my knowledge it is now illegal for a lineman to carry such
a device.  In fact the law has been amended to specifically allow
manufactures of such devices to send via certain means _advertisements_
of such devices to official law enforcement and government agencies.
[They screwed the law up at one point and it was technically illegal
to advertise these types of devices anyplace to anyone.  So the law
enforcement folks had a bill introduced that changed the law so that
they could be sent advertisements.  [If I recall correctly this was
done in public law 105-112, 1998 time frame]  

Specifically 18 USC 2512 (3) was added:
It shall not be unlawful under this section to advertise for sale a
device described in subsection (1) of this section if the advertisement is
mailed, sent, or carried in interstate or foreign commerce solely to a
domestic provider of wire or electronic communication service or to an
agency of the United States, a State, or a political subdivision thereof
which is duly authorized to use such device.

So another company can send _us_ BPF _advertisements_, as a ``domestic provider
of wire or electronic communication ... duly authorized to use such device''.
I don't know if all ISP qualify under this as I have not done the proper
set of cross references to get a definition of ``domestic provider'' and
the even harder search of ``duly authorized''.


Please don't come crashing down on the messenger on this one folks,
I don't like what I have read in the last 24 hours any more than any
of you like reading what I have said here.  It's bad, bumming, bogus
law, that was poorly written.  The original 1948 version of the code
was much more concise, was restricted to only governmental entities
and has now been hacked to death by amendments that it's so screwed up
little things like the above amendment are having to be done so that
even law enforcement hands are not tied by the letter of the law.

I suspect some crook got off in a court case some place by showing that
the police found out about the wire tapping device they used to catch
him via an advertisement sent by the manufacture to them via mail,
which was illegal until the 1998 amendment, causing the evidence so
collected to be inadmissible in court.  Twisted, but then so is the
law.


I did find some good news... there was a Senate Bill introduced in
the 105th congress, 1998 S1, that would in effect make DES and lots
of other encryption code totally legal to export by the nature of
equivalent functional cryptography available outside the US.  Unfortunately
this bill has been sitting in a sub-comity since shortly after it
was introduced :-(.  If your interested in writing your Senator
about it, let me know and I'll find the it again and give you the
bill number to bend his ear over.  There where 10 originating
Senators, so it has wide support, or at least more support than
most bills of this nature.

-- 
Rod Grimes - KD7CAX - (RWG25)                    rgrimes@gndrsh.dnsmgr.net


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