THE JUSTICE DEPARTMENT needs to get a clue on its reflexive anti-encryption stands. This article from The Register notes problems with the latest proposals:

One such proposal — which has been floated out many times before — is the idea of making a new crime out of using encryption in during the course of commission of a different and unrelated crime.

The language would create a new offense which would punish anyone who “during the commission of a felony under Federal law, knowingly and willfully encrypts any incriminating communication or information relating to that felony.” It defines encryption as referring to “the scrambling (and descrambling) of wire communications, electronic communications, or electronically stored information, using mathematical formulas or algorithms in order to preserve the confidentiality, integrity, or authenticity of, and prevent unauthorized recipients from accessing or altering, such communications or information.”

This is a bad idea.

A few preliminary observations: the proposed law applies to any federal felony, not simply terrorism or related offenses. And it punishes the encrypting of any communication related to the offense — not simply encrypting communications with the intention to conceal or obstruct the offense. It also takes an expansive definition of encryption to include not only encryption that is used to protect the confidentiality of the communication, but also encryption that may be used to authenticate — such as digital signatures.

If you order a book from Amazon.com and fail to pay state tax, the SSL session with Amazon supports a five year felony.

Federal prosecutors will love the, er, “flexibility” that this will give them. But it’s wrong, it’s cheesy, and it should never become law.

And the more that the Justice Department uses “anti-terrorism” as a slogan for grabbing more power against ordinary crimes, the more convinced a lot of people will become that the Justice Department isn’t serious about terrorism at all.