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1.14 Legal Issues

The legal aspects of cryptography are fascinating, but the picture changes quickly, and we are certainly not experts in law. Although it pains us to say it, if you're going to do anything involving cryptography, talk to a lawyer.

1.14.1 Patents

One legal issue that affects the choice of security mechanisms is patents. Most cryptographic techniques are covered by patents and historically this has slowed their deployment. One of the important criteria for selection of the AES algorithm (see §3.5 Advanced Encryption Standard (AES)) was that it be royalty free.

The most popular public key algorithm is RSA (see §6.3 RSA). RSA was developed at MIT, and under the terms of MIT's funding at the time there are no license fees for U.S. government use. It was only patented in the U.S., and licensing was controlled by one company which claimed that the Hellman-Merkle patent also covered RSA, and that patent is international. Interpretation of patent rights varies by country, so the legal issues were complex. At any rate, the last patent on RSA ran out on September 20, 2000. There were many parties on that day.

To avoid large licensing fees, many standards attempted to use DSS (see §6.5 Digital Signature Standard (DSS)) instead of RSA. Although in most respects DSS is technically inferior to RSA, when first announced it was advertised that DSS would be freely licensable, i.e., it would not be necessary to reach agreement with the RSA licensing company. But the company claimed Hellman-Merkle covered all public key cryptography, and strengthened its position by acquiring rights to a patent by Schnorr that was closely related to DSS. Until the patents expired, the situation was murky.

"I don't know what you mean by your way," said the Queen: "all the ways about here belong to me..."
Through the Looking Glass

Some of the relevant patents, luckily all expired, are:

  • Diffie-Hellman: Patent #4,200,770, issued 1980. This covers the Diffie-Hellman key exchange described in §6.4 Diffie-Hellman.

  • Hellman-Merkle: Patent #4,218,582, issued 1980. This is claimed to cover all public key systems. There is some controversy over whether this patent should be valid. The specific public key mechanisms described in the patent (knapsack systems) were subsequently broken.

  • Rivest-Shamir-Adleman: Patent #4,405,829, issued 1983. This covers the RSA algorithm described in §6.3 RSA.

  • Hellman-Pohlig: Patent #4,424,414, issued 1984. This is related to the Diffie-Hellman key exchange.

1.14.2 Export Controls

Mary had a little key (It's all she could export) And all the email that she sent Was opened at the Fort.
—Ron Rivest

The U.S. government used to impose severe restrictions on export of encryption. This caused much bitterness in the computer industry and led to some fascinating technical designs so that domestic products, which were legally allowed to use strong encryption, could use strong encryption where possible, and yet interoperate with exportable products that were not allowed to use strong encryption. We describe such designs in this book (see §19.13 Exportability). Luckily, export controls seem to be pretty much lifted. For historical reasons, and in case they become relevant again (we sure hope not), we couldn't bear to delete the following section. It was written for the first edition of this book, and was timely in 1995 when that edition was published:

The U.S. government considers encryption to be a dangerous technology, like germ warfare and nuclear weapons. If a U.S. corporation would like to sell to other countries (and the proceeds are not going to be funding the Contras), it needs export approval. The export control laws around encryption are not clear, and their interpretation changes over time. The general principle is that the U.S. government does not want you to give out technology that would make it more difficult for them to spy. Sometimes companies get so discouraged that they leave encryption out of their products altogether. Sometimes they generate products that, when sold overseas, have the encryption mechanisms removed. It is usually possible to get export approval for encryption if the key lengths are short enough for the government to brute-force check all possible keys to decrypt a message. So sometimes companies just use short keys, or sometimes they have the capability of varying the key length, and they fix the key length to be shorter when a system is sold outside the U.S.

Even if you aren't in the business of selling software abroad, you can run afoul of export controls. If you install encryption software on your laptop and take it along with you on an international trip, you may be breaking the law. If you distribute encryption software within the U.S. without adequate warnings, you are doing your customers a disservice. And the legality of posting encryption software on a public network is questionable.

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