13.5.1. Patent Rights

First, there is a divergence between the United States and the rest of the world in the matter of patenting computer programs. The rest of the world follows the old maxim that you cannot patent an idea or a form of words, but you have to patent an actual device. A computer program is not a device, so you cannot patent it. The United States, on the other hand, adopts what looks like a convenient fiction to everyone else and says that a computer running a particular program is different from the same computer running another program because the patterns of 0s and 1s in its memory and CPU registers are different. A program is therefore a patentable device.

For the moment, however, the patent seems to be good and normal, and patent law applies to the RSA algorithm as it does to any other patented device: you may not use a patented program for commercial purposes in the United States without a license from the patentee. This also applies to programs brought into the United States from abroad that use the basic algorithms. So, the doughty Australian, Eric Young, who wrote the Secure Sockets Layer libraries from basic number theory, finds to his annoyance that his code is subject to U.S. law and complains that in the United States people who use his code have to pay a license fee to "people he and they have never met."

But this is no different from any other patent. If, in the privacy of your Australian kitchen, you make a copy of an eyebrow tweezer patented in the United States and give it to someone who uses it commercially in their hairdressing salon in California, the owner of the patent can legally demand a fee, even though neither of you have met him and the tweezers were made in patent-free Australia. This is how patents work.

Patents have to be applied for and granted country by country. The fact that a device is patented in the United States gives it no automatic protection in Thailand. And, in fact, no other country in the world recognizes software patents, so the commercial license fee is only payable in the United States.

U.S. licenses for the public key algorithms used in Apache are to be had from PKP on payment of a negotiable fee.

13.5.2. National Security

As far as U.S. law is concerned, the world divides into three geographical areas:

• The United States

• Canada

• The rest of the world

In the United States, people can use full-strength PK algorithms but must pay a license fee to PKP. And you can import and use illegal encryption software from abroad, without fear of trouble from the Defense Department; however, you should pay patent license fees to PKP, so there is not much point.

In Canada, you can use the full-strength encryption exported from the United States, and you don't have to pay a license fee because Canada does not recognize patents on software.

In the rest of the world, you can use feeble encryption exported from the United States or full-strength encryption brewed locally. If you can't get it locally, there are plenty of people in Moscow and other places who will give you the full-strength U.S. product.

Britain used to follow the U.S. ban on exports of munitions of war, but now the following two instruments apply. (We think! The U.K. government is no more interested in making it easy to figure out what is going on than the U.S. government, it seems.)

• The Export of Goods (Control) Order, which is United Kingdom legislation

• Dual-Use and Related Good (Export Control) Regulations, which are European Community law

These laws are rather more lenient than U.S. law, and, in particular, Apache-SSL is probably exempt as an over-the-counter product. Anyone who wants to get into this business should seek legal advice, since the British government is no fonder than any other of explaining in clear and simple terms what the law actually means in practice. However, it also is very shy of making a fool of itself in court, so the situation does not seem to be draconian, though it is more worrying than it was. At the time of this writing (summer 1998), the new Labor government had been in power about a year. The manifesto that led to their election had made anodyne noises about encryption, but as time went on, it appeared that the American government was making strenuous efforts to get Britain and the European Community to adhere to its unsatisfactory policies. The situation may have been complicated by British prime minister Blair's need to get President Clinton's active help in reducing U.S. support to the IRA in order to try to resolve the Irish war. In the process he may have been obliged to give unpublished undertakings on other issues -- which may have included encryption.

• One corrupt official within the escrow system could throw every "secure" site open to the underworld.

• It would not bother criminals at all.

It is rather as though a new kind of unbreakable door lock had been invented. The government, afraid that behind these new doors, citizens are going to do unspeakable things, orders that every owner of the new lock has to deposit a copy of the key at the police station. The criminals do not bother, and their friends the corrupt policemen give them all the honest peoples' keys.

The difficulty with trying to criminalize the use of encrypted files is that they cannot be positively identified. An encrypted message may be hidden in an obvious nonsense file, but it may also be hidden (by steganography) in unimportant bits in a picture or a piece of music or something like that. Conversely, a nonsense file may be an encrypted message, but it may also be a corrupt ordinary file or a proprietary data file whose format is not published. There seems to be no reliable way of distinguishing between the possibilities except by producing a decode. And the only person who can do that is the "criminal," who is not likely to put himself in jeopardy.