From: "Philip L. Dubois"
Subject: News Release
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Yesterday morning, I received word from Assistant U.S. Attorney William
Keane in San Jose, California, that the government's three-year
investigation of Philip Zimmermann is over. Here is the text of Mr.
Keane's letter to me:
"The U.S. Attorney's Office for the Northern District of California has
decided that your client, Philip Zimmermann, will not be prosecuted in
connection with the posting to USENET in June 1991 of the encryption
program Pretty Good Privacy. The investigation is closed."
The U.S. Attorney also released this to the press:
"Michael J. Yamaguchi, United States Attorney for the Northern District
of California, announced today that his office has declined prosecution
of any individuals in connection with the posting to USENET in June 1991
of the encryption program known as "Pretty Good Privacy." The
investigation has been closed. No further comment will be made by the
U.S. Attorney's Office on the reasons for declination.
Assistant U.S. Attorney William P. Keane of the U.S. Attorney's Office in
San Jose at (408) 535-5053 oversaw the government's investigation of the
case."
On receiving this news, Mr. Zimmermann posted this to the Cypherpunks
list:
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My lead defense lawyer, Phil Dubois, received a fax this morning from
the Assistant US Attorney in Northern District of California, William
Keane. The letter informed us that I "will not be prosecuted in
connection with the posting to USENET in June 1991 of the encryption
program Pretty Good Privacy. The investigation is closed."
This brings to a close a criminal investigation that has spanned the
last three years. I'd like to thank all the people who helped us in
this case, especially all the donors to my legal defense fund.
Apparently, the money was well-spent. And I'd like to thank my very
capable defense team: Phil Dubois, Ken Bass, Eben Moglen, Curt Karnow,
Tom Nolan, and Bob Corn-Revere. Most of the time they spent on the case
was pro-bono. I'd also like to thank Joe Burton, counsel for the co-
defendant.
There are many others I can thank, but I don't have the presence of mind
to list them all here at this moment. The medium of email cannot express
how I feel about this turn of events.
-Philip Zimmermann
11 Jan 96
I'd like to add a few words to those of my client.
First, I thank Mr. Keane for his professionalism in notifying us of the
government's decision. It has become common practice for federal
prosecutors to refuse to tell targets of investigations that the
government has decided not to prosecute. I appreciate Mr. Keane's
courtesy.
Let me add my thanks to the other members of the defense team-- Ken Bass
in Washington D.C. (kbass@venable.com), Curt Karnow in San Francisco
(karnow@cup.portal.com), Eben Moglen in New York (em21@columbia.edu), and
Tom Nolan in Palo Alto (74242.2723@compuserve.com). Bob Corn-Revere in
D.C. (rcr@dc1.hhlaw.com) was a great help on First Amendment issues.
These lawyers are heroes. They donated hundreds of hours of time to this
cause. Each is outstanding in his field and made a contribution that
nobody else could have made. It has been an honor and a privilege to
work with these gentlemen.
Mr. Zimmermann mentioned a lawyer named Joe Burton (joebur@aol.com) of
San Francisco. Mr. Burton deserves special mention. He represented
another person who was under investigation. To have made this other
person publicly known would have been an invasion of privacy, so we
didn't. We still won't, but we can finally acknowledge Mr. Burton's
enormous contribution. Whether we were getting paid or not, the rest of
us at least received some public attention for representing Phil
Zimmermann. Mr. Burton labored quietly on behalf of his client. He took
the case pro bono and did an extraordinary job. He is a lawyer who
exemplifies the finest traditions of the Bar and the highest standard of
integrity. I am proud to know Joe Burton.
The warriors at the Electronic Privacy Information Center (EPIC)-- Marc
Rotenberg, David Sobel, and David Banisar-- and at the Electronic
Frontier Foundation (EFF), Computer Professionals for Social
Responsibility (CPSR), and the American Civil Liberties Union (ACLU)
provided financial, legal, and moral support and kept the public
informed. They continue to do so, and we all owe them thanks for it.
Those members of the press who recognized the importance of this story
and told the world about it should be commended. Undeterred by the
absence of sex and violence, these reporters discussed the real issues
and in so doing served the public well.
Many other people, lawyers and humans alike, made invaluable
contributions. My assistants Alicia Alpenfels, Suzanne Turnbull Paulman,
and Denise Douglas and my investigator Eli Nixon kept us organized. Rich
Mintz, Tom Feegel, and Nathaniel Borenstein of First Virtual put up a Web
site and aggressively supported the Zimmermann Legal Defense Fund.
Another site was built by Michael Sattler of San Francisco, and he and
Dave Del Torto (also of S.F.) let me stay in their homes. Thanks also to
MIT and The MIT Press: Hal Abelson, Jeff Schiller, Brian LaMacchia,
Derek Atkins, Jim Bruce, David Litster, Bob Prior, and Terry Ehling. And
there were many others.
Finally, I offer my thanks to everyone who contributed to the Zimmermann
Legal Defense Fund. People all over the world gave their hard-earned
money to support not only Phil Zimmermann's defense but also the cause of
privacy. It is impossible to be too pessimistic about our future when
there are so many of you.
Now, some words about the case and the future. Nobody should conclude
that it is now legal to export cryptographic software. It isn't. The
law may change, but for now, you'll probably be prosecuted if you break
it. People wonder why the government declined prosecution, especially
since the government isn't saying. One perfectly good reason might be
that Mr. Zimmermann did not break the law. (This is not always a
deterrent to indictment. Sometimes the government isn't sure whether
someone's conduct is illegal and so prosecutes that person to find out.)
Another might be that the government did not want to risk a judicial
finding that posting cryptographic software on a site in the U.S., even
if it's an Internet site, is not an "export". There was also the risk
that the export-control law would be declared unconstitutional. Perhaps
the government did not want to get into a public argument about some
important policy issues: should it be illegal to export cryptographic
software? Should U.S. citizens have access to technology that permits
private communication? And ultimately, do U.S. citizens have the right
to communicate in absolute privacy?
There are forces at work that will, if unresisted, take from us our
liberties. There always will be. But at least in the United States, our
rights are not so much stolen from us as they are simply lost by us. The
price of freedom is not only vigilance but also participation. Those
folks I mention in this message have participated and no doubt will
continue. My thanks, and the thanks of Philip Zimmermann, to each of
you.
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