Should there be a constitutional right to strong encryption

[ksen]

Maybe the SCOTUS could expand the 2nd amendment or add on to the right of privacy. I’m interested in “should there be a right” NOT “is there a right". I don't want to get into constitutional interpretation. The government made previous attempts to control or get the upper hand with crypto. See the clipper chip and export restrictions.

Now they are trying again:
http://blogs.wsj.com/digits/2015/01/16/obama-sides-with-cameron-in-encryption-fight/

President Barack Obama said Friday that police and spies should not be locked out of encrypted smartphones and messaging apps, taking his first public stance in a simmering battle over private communications in the digital age.

Apple, Google and Facebook have introduced encrypted products in the past half year that the companies say they could not unscramble, even if faced with a search warrant. That’s prompted vocal complaints from spy chiefs, the Federal Bureau of Investigation and, this week, British Prime Minister David Cameron.

Yes.

 

[Jarhyn]

I would say there is already a constitutional right to encryption, and a good one: the right to refuse self-incrimination.

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves. If someone could remove and reattach a hand with as much effort, would we consider our hands to be mere property? If we could do the same with a chunk of brain? That's what we're talking about here. Pieces of ourselves, that despite being not of the same contiguous mass, are nonetheless parts of the people we are. We have a right to keep secrets locked away in our brains, and not testify against ourselves. Do we simply give that up when parts of ourselves aren't carbon based anymore?

 

[Tom Sawyer]

I would say there is already a constitutional right to encryption, and a good one: the right to refuse self-incrimination.

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves. If someone could remove and reattach a hand with as much effort, would we consider our hands to be mere property? If we could do the same with a chunk of brain? That's what we're talking about here. Pieces of ourselves, that despite being not of the same contiguous mass, are nonetheless parts of the people we are. We have a right to keep secrets locked away in our brains, and not testify against ourselves. Do we simply give that up when parts of ourselves aren't carbon based anymore?

I don't know about that one. It's like saying a drawer in our house is an extension of ourselves and therefore search warrants to enter a house are unconstitutional. Our electronic devices are things that we own, not parts of ourselves. Putting something into something we own, be it a phone or a drawer, isn't any way equivalent to removing a hand or poking around in our brain.

 

[lpetrich]

It's interesting that this discussion focuses on how to interpret the existing Constitution rather than amend it to include a right to uncrackable encryption.

Part of the problem is that it's very difficult to amend the US Constitution. Many US states and most other nations have much easier-to-amend constitutions.

Historically, there have been four bursts of Constitutional amendment: the Bill-of-Rights burst, the Civil-War burst, the Progressive burst, and the Sixties burst. All four of them roughly corresponded to four of Arthur Schlesinger's liberal periods, periods of progressive change. So we are only likely to get more amendments in another such period, and by historical standards, we are overdue for one.

 

[Jarhyn]

I would say there is already a constitutional right to encryption, and a good one: the right to refuse self-incrimination.

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves. If someone could remove and reattach a hand with as much effort, would we consider our hands to be mere property? If we could do the same with a chunk of brain? That's what we're talking about here. Pieces of ourselves, that despite being not of the same contiguous mass, are nonetheless parts of the people we are. We have a right to keep secrets locked away in our brains, and not testify against ourselves. Do we simply give that up when parts of ourselves aren't carbon based anymore?

I don't know about that one. It's like saying a drawer in our house is an extension of ourselves and therefore search warrants to enter a house are unconstitutional. Our electronic devices are things that we own, not parts of ourselves. Putting something into something we own, be it a phone or a drawer, isn't any way equivalent to removing a hand or poking around in our brain.

Not really. drawer is more like the contents of a hand or pocket. The rub comes when your talking not about things but asking for the MEANING of a thing to you. sure they can search the sock drawer. But do they have any right to compel you to say WHY what they found there is there? Of what meaning it has to you? They find a drawer filled with rocks, of different types with different origins. Do they have the right to compel you to speak on where you got the rocks? No. All they get is the knowledge of the rocks. Similar is the information on the phone. All they get is encrypted. They have no right to compel you to tell them what it means.

 

[Tom Sawyer]

I don't know about that one. It's like saying a drawer in our house is an extension of ourselves and therefore search warrants to enter a house are unconstitutional. Our electronic devices are things that we own, not parts of ourselves. Putting something into something we own, be it a phone or a drawer, isn't any way equivalent to removing a hand or poking around in our brain.

Not really. drawer is more like the contents of a hand or pocket. The rub comes when your talking not about things but asking for the MEANING of a thing to you. sure they can search the sock drawer. But do they have any right to compel you to say WHY what they found there is there? Of what meaning it has to you? They find a drawer filled with rocks, of different types with different origins. Do they have the right to compel you to speak on where you got the rocks? No. All they get is the knowledge of the rocks. Similar is the information on the phone. All they get is encrypted. They have no right to compel you to tell them what it means.

No, the encryption is pretty much just a lock. If they get a warrant to search your house and they find a locked drawer, they can compel you to open the drawer or just break it open.

 

[Jarhyn]

Encryption isn't a lock. Not in theory, and not in practice. Sources that tell you otherwise are trying to dumb it down, and are doing a bad job of it. Encryption is an obfuscation of meaning. We have no good, concise simple terms to describe it in English so we use facile terms like 'lock'. the only thing standing between a brain scan and the ability to pick information from a brain at will is the algorithm to decode the data. The same is true for a phone.

There drawer is already open. The question is, does it mean anything to the people trying to read it. And the answer is, it shouldn't unless you CHOOSE to tell the reader what it means.

Let's look at this with a different example: you carry a bag of rocks in your pocket, of different types and colors. Each of these rocks is actually a piece of encoded data, and without the key knowledge of what color/type combinations signify, someone cannot know what data these rocks are encoding. They could mean anything, or nothing. But the bag of rocks in your pocket is used to remind you of the details of where you hid several thousand dollars and a pile of corpses all placed by nefarious means, and occasionally moved (thus the need for a way to store the information consistently).

They may find the rocks, but your right to refuse incrimination specifically allows you to not speak on the nature of the stones in your pocket. Why would your right to not speak on the nature of encoded data not apply in more complex encoded data?

 

[dismal]

I would say there is already a constitutional right to encryption, and a good one: the right to refuse self-incrimination.

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves. If someone could remove and reattach a hand with as much effort, would we consider our hands to be mere property? If we could do the same with a chunk of brain? That's what we're talking about here. Pieces of ourselves, that despite being not of the same contiguous mass, are nonetheless parts of the people we are. We have a right to keep secrets locked away in our brains, and not testify against ourselves. Do we simply give that up when parts of ourselves aren't carbon based anymore?

The government has already decided it has the right to look to compel you to produce your private documents, take voice or handwriting samples, or even take something as personal as your blood without infringing your 5th Amendment rights.

I don't think there's much question they can take your laptop and everything on it under existing precedent. The can probably also compel you to produce that post-it on which you've written down your passwords.

Perhaps you still have a 5th Amendment right not to reveal a password you have committed to memory.

Cite:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=425&invol=391

It is also clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating. We have, accordingly, declined to extend the protection of the privilege to the giving of blood samples, Schmerber v. California, 384 U.S. 757, 763 -764 (1966); 10 to the giving of handwriting exemplars, Gilbert v. California, 388 U.S. 263, 265 -267 (1967); voice exemplars, United States v. Wade, 388 U.S. 218, 222 -223 (1967); or the donning of a blouse worn by the perpetrator, Holt v. United States, 218 U.S. 245 (1910). Furthermore, despite Boyd, neither a partnership nor the individual partners are shielded from compelled production of partnership records on self-incrimination grounds. Bellis v. United States, 417 U.S. 85 (1974). It would appear that under that case the precise claim sustained in Boyd would now be rejected for reasons not there considered.

...

A subpoena served on a taxpayer requiring him to produce an accountant's workpapers in his possession without doubt involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. Schmerber v. California, supra; United States v. Wade, supra; and Gilbert v. California, supra. The accountant's workpapers are not the taxpayer's. They were not prepared by the taxpayer, and they contain no testimonial declarations by him. Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled [425 U.S. 391, 410] testimonial evidence, either of the taxpayers or of anyone else. 11 The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else.

 

[Underseer]

Maybe the SCOTUS could expand the 2nd amendment or add on to the right of privacy. I’m interested in “should there be a right” NOT “is there a right". I don't want to get into constitutional interpretation. The government made previous attempts to control or get the upper hand with crypto. See the clipper chip and export restrictions.

Now they are trying again:
http://blogs.wsj.com/digits/2015/01/16/obama-sides-with-cameron-in-encryption-fight/

President Barack Obama said Friday that police and spies should not be locked out of encrypted smartphones and messaging apps, taking his first public stance in a simmering battle over private communications in the digital age.

Apple, Google and Facebook have introduced encrypted products in the past half year that the companies say they could not unscramble, even if faced with a search warrant. That’s prompted vocal complaints from spy chiefs, the Federal Bureau of Investigation and, this week, British Prime Minister David Cameron.

The notion of a "right to privacy" is an invention of the Far Left as an excuse to murder babies. You have no "right" to privacy, especially not from rich people and large corporations. The very notion of "right to privacy" is an attempt to make us all less free. [/conservolibertarian]

 

[Jarhyn]

The government has already decided it has the right to look to compel you to produce your private documents, take voice or handwriting samples, or even take something as personal as your blood without infringing your 5th Amendment rights.

I don't think there's much question they can take your laptop and everything on it under existing precedent. The can probably also compel you to produce that post-it on which you've written down your passwords.

Perhaps you still have a 5th Amendment right not to reveal a password you have committed to memory.

Cite:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=425&invol=391

It is also clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating. We have, accordingly, declined to extend the protection of the privilege to the giving of blood samples, Schmerber v. California, 384 U.S. 757, 763 -764 (1966); 10 to the giving of handwriting exemplars, Gilbert v. California, 388 U.S. 263, 265 -267 (1967); voice exemplars, United States v. Wade, 388 U.S. 218, 222 -223 (1967); or the donning of a blouse worn by the perpetrator, Holt v. United States, 218 U.S. 245 (1910). Furthermore, despite Boyd, neither a partnership nor the individual partners are shielded from compelled production of partnership records on self-incrimination grounds. Bellis v. United States, 417 U.S. 85 (1974). It would appear that under that case the precise claim sustained in Boyd would now be rejected for reasons not there considered.

...

A subpoena served on a taxpayer requiring him to produce an accountant's workpapers in his possession without doubt involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. Schmerber v. California, supra; United States v. Wade, supra; and Gilbert v. California, supra. The accountant's workpapers are not the taxpayer's. They were not prepared by the taxpayer, and they contain no testimonial declarations by him. Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled [425 U.S. 391, 410] testimonial evidence, either of the taxpayers or of anyone else. 11 The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else.

Good thing I didn't claim they couldn't look at the encrypted version of the data, then, eh? As you can look at a pile of rocks and take the rocks, and use them as evidence tha a person was indeed carrying... A pile of rocks (gasp!). But a pile of rocks is only a pile of rocks unless you implicate yourself by telling that it is really an encoded message that means 'pile of bodies'. And just like all the nonsense 1's and 0's are indistinguishable from random without the information that translates them into a pile of bodies.

 

[dismal]

The government has already decided it has the right to look to compel you to produce your private documents, take voice or handwriting samples, or even take something as personal as your blood without infringing your 5th Amendment rights.

I don't think there's much question they can take your laptop and everything on it under existing precedent. The can probably also compel you to produce that post-it on which you've written down your passwords.

Perhaps you still have a 5th Amendment right not to reveal a password you have committed to memory.

Cite:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=425&invol=391

Good thing I didn't claim they couldn't look at the encrypted version of the data, then, eh? As you can look at a pile of rocks and take the rocks, and use them as evidence tha a person was indeed carrying... A pile of rocks (gasp!). But a pile of rocks is only a pile of rocks unless you implicate yourself by telling that it is really an encoded message that means 'pile of bodies'. And just like all the nonsense 1's and 0's are indistinguishable from random without the information that translates them into a pile of bodies.

The legal fine points appear to be lost on you. The government has decreed you do not have a 5th amendment right not to produce your documents, blood, etc that have been subpoenaed.

Hence this sort of argument:

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves.

Is not going to get you very far.

 

[ksen]

The 5th amendment may not keep the government from requesting documents but it probably does protect you if you refuse to answer any questions like,"where's your encryption key?"

 

[Jimmy Higgins]

If they have a warrant, I don't see why the search is inappropriate. You can't lock all your drugs in a closet and lock the door if they search your home.

 

[dismal]

The 5th amendment may not keep the government from requesting documents but it probably does protect you if you refuse to answer any questions like,"where's your encryption key?"

I linked cases earlier. At this time results are mixed.

United States v. Fricosu, No. 10-cr-00509-REB-02, is a federal criminal case in Colorado that addressed whether a person can be compelled to reveal his or her encryption passphrase or password, despite the U.S. Constitution's Fifth Amendment protection against self-incrimination.[1] On January 23, 2012, judge Robert E. Blackburn held that under the All Writs Act, Fricosu is required to produce an unencrypted hard drive.[2]

Fricosu's attorney claimed it was possible she didn't remember the password. A month later, Fricosu's ex-husband handed the police a list of potential passwords.[3] One of the passwords worked, rendering the self-incrimination issue moot.

http://en.wikipedia.org/wiki/United_States_v._Fricosu

In re Boucher, No. 2:06-mj-91, 2009 WL 424718, is a federal criminal case in Vermont, which was the first to address directly the question of whether a person can be compelled to reveal his or her encryption passphrase or password, despite the U.S. Constitution's Fifth Amendment protection against self-incrimination. A magistrate judge held that producing the passphrase would constitute self-incrimination. In its submission on appeal to the District Court, the Government stated that it does not seek the password for the encrypted hard drive, but only sought to force Boucher to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury. A District Court judge agreed with the government, holding that, given Boucher's initial cooperation in showing some of the content of his computer to border agents, producing the complete contents would not constitute self-incrimination.

http://en.wikipedia.org/wiki/In_re_Boucher

Two rulings this week helped to clarify the circumstances under which a defendant can be compelled to reveal the contents of an encrypted hard drive. On Wednesday, the Tenth Circuit Court of Appeals let stand a judge's ruling in a Colorado case that the defendant in a mortgage fraud case could be compelled to produce the contents of her encrypted laptop. But on Thursday, the Eleventh Circuit Court of Appeals overturned a Florida contempt of court charge against a suspect in a child pornography case who refused to decrypt the encrypted contents of several hard drives.

While the two rulings reach opposite results, they don't necessarily contradict each other. The results turned on how much the government knew about the contents of the encrypted drives. In previous cases, the courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination. On the other hand, if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment.

http://arstechnica.com/tech-policy/...otections-can-apply-to-encrypted-hard-drives/

 

[Jarhyn]

Good thing I didn't claim they couldn't look at the encrypted version of the data, then, eh? As you can look at a pile of rocks and take the rocks, and use them as evidence tha a person was indeed carrying... A pile of rocks (gasp!). But a pile of rocks is only a pile of rocks unless you implicate yourself by telling that it is really an encoded message that means 'pile of bodies'. And just like all the nonsense 1's and 0's are indistinguishable from random without the information that translates them into a pile of bodies.

The legal fine points appear to be lost on you. The government has decreed you do not have a 5th amendment right not to produce your documents, blood, etc that have been subpoenaed.

Hence this sort of argument:

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves.

Is not going to get you very far.

The ability to read and comprehend what you read seems lost on you. The documents have been produced. The stones are on the table. The blood is in the tube. It is now the government's problem to figure out what it means. The fifth amendment is, in almost every instance, a refusal to explain the meaning of something.

It is not the documents that someone retains a right to. It is their meaning. Encryption doesn't deny the documents. It is not a lock. It denies the meaning of the document.

 

[dismal]

The legal fine points appear to be lost on you. The government has decreed you do not have a 5th amendment right not to produce your documents, blood, etc that have been subpoenaed.

Hence this sort of argument:

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves.

Is not going to get you very far.

The ability to read and comprehend what you read seems lost on you. The documents have been produced. The stones are on the table. The blood is in the tube. It is now the government's problem to figure out what it means. The fifth amendment is, in almost every instance, a refusal to explain the meaning of something.

It is not the documents that someone retains a right to. It is their meaning. Encryption doesn't deny the documents. It is not a lock. It denies the meaning of the document.

The problem may not have anything to do with me.

 

[Jarhyn]

The legal fine points appear to be lost on you. The government has decreed you do not have a 5th amendment right not to produce your documents, blood, etc that have been subpoenaed.

Hence this sort of argument:

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves.

Is not going to get you very far.

The ability to read and comprehend what you read seems lost on you. The documents have been produced. The stones are on the table. The blood is in the tube. It is now the government's problem to figure out what it means. The fifth amendment is, in almost every instance, a refusal to explain the meaning of something.

It is not the documents that someone retains a right to. It is their meaning. Encryption doesn't deny the documents. It is not a lock. It denies the meaning of the document.

The problem may not have anything to do with me.

But evidence says it does: you've clearly confused the right against search and seizure without warrant with the right to refuse to implicate yourself with a crime through explaining things.

 

[dismal]

The legal fine points appear to be lost on you. The government has decreed you do not have a 5th amendment right not to produce your documents, blood, etc that have been subpoenaed.

Hence this sort of argument:

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves.

Is not going to get you very far.

The ability to read and comprehend what you read seems lost on you. The documents have been produced. The stones are on the table. The blood is in the tube. It is now the government's problem to figure out what it means. The fifth amendment is, in almost every instance, a refusal to explain the meaning of something.

It is not the documents that someone retains a right to. It is their meaning. Encryption doesn't deny the documents. It is not a lock. It denies the meaning of the document.

The problem may not have anything to do with me.

But evidence says it does: you've clearly confused the right against search and seizure without warrant with the right to refuse to implicate yourself with a crime through explaining things.

I've posted a bunch of relevant cases. Maybe you could read them.

 

[Jarhyn]

The legal fine points appear to be lost on you. The government has decreed you do not have a 5th amendment right not to produce your documents, blood, etc that have been subpoenaed.

Hence this sort of argument:

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves.

Is not going to get you very far.

The ability to read and comprehend what you read seems lost on you. The documents have been produced. The stones are on the table. The blood is in the tube. It is now the government's problem to figure out what it means. The fifth amendment is, in almost every instance, a refusal to explain the meaning of something.

It is not the documents that someone retains a right to. It is their meaning. Encryption doesn't deny the documents. It is not a lock. It denies the meaning of the document.

The problem may not have anything to do with me.

But evidence says it does: you've clearly confused the right against search and seizure without warrant with the right to refuse to implicate yourself with a crime through explaining things.

I've posted a bunch of relevant cases. Maybe you could read them.

No. You've posted a bunch of cases on the compelling of a person to produce a physical thing that they wanted to withhold. This is not the same as compelling the explanation of the meaning of that thing. It is the difference between information and exformation.

 

[dismal]

The legal fine points appear to be lost on you. The government has decreed you do not have a 5th amendment right not to produce your documents, blood, etc that have been subpoenaed.

Hence this sort of argument:

Our technology, particularly our personal devices, are not mere property, they are extensions of ourselves.

Is not going to get you very far.

The ability to read and comprehend what you read seems lost on you. The documents have been produced. The stones are on the table. The blood is in the tube. It is now the government's problem to figure out what it means. The fifth amendment is, in almost every instance, a refusal to explain the meaning of something.

It is not the documents that someone retains a right to. It is their meaning. Encryption doesn't deny the documents. It is not a lock. It denies the meaning of the document.

The problem may not have anything to do with me.

But evidence says it does: you've clearly confused the right against search and seizure without warrant with the right to refuse to implicate yourself with a crime through explaining things.

I've posted a bunch of relevant cases. Maybe you could read them.

No. You've posted a bunch of cases on the compelling of a person to produce a physical thing that they wanted to withhold. This is not the same as compelling the explanation of the meaning of that thing. It is the difference between information and exformation.

Did you notice the ones where they compelled someone to produce an unencrypted laptop?

I imagine if you produced an encrypted one and explained you were not compelled to explain the meaning of the thing you'd be in contempt.