Should there be a constitutional right to strong encryption

[Jarhyn]

The 14th is about SCOTUS having authority to deal with the issue state by state.

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Fuck. This tread went exactly where I didn't want to go. Constitution interpretation.

You started a thread on the Constitution and didn't want it to go into Constitution interpretation?

God damn it! I wanted to talk about it raining outside, not the weather.

I'm sloppy when I start threads. I need to work on that. Here is my revised title: Should citizens of any country (and specifically the US) have an inalienable right to have strong crypto and security tools.

The 2nd amendment was me just thinking up random shit. I've read ideas even more crazy in Law Review Journals. I wonder if the Federalist Society has thought of this? Maye I'll send 'em a note. If the NRA, The Federalist Society, and libertarians all got together I bet they could take the idea push it fairly far.

I already explained that it already exists in the form of the fifth. This is only a minor problem to the police state though as that the judges who rule on it think encryption is a lock.

How is locking a closet door when the Police have a warrant protected by the Fifth Amendment?

Repeat after me until you internalize this fact: 'encryption is not a lock'.

Encryption is not a lock.
Encryption is not a lock.
Encryption is not a lock.

You do realize that asserting something repeatedly doesn't automatically make it true, right? Despite what Fox News thinks.

The fifth protects you from explaining the meaning of any thing that might incriminate you. It protects you from having to say WHY you were in the alley at 5 AM covered with blood. It protects you from having to explain the stones in your pocket. It protects you from having to point out the line on your books that is code for 'this was spent on hookers'.

Are you citing case law here that devulging passwords is protected under the Fifth Amendment, according to the Supreme Court? If it is, it is, and I can readily accept that.

Why should this protection not extend to allowing a person to refuse to explain data on a hard drive?

I take that to mean the answer to my above question is no. I'm not trying to be snippy. The law is whatever the law is perceived to mean.

They have an entitlement to the data as it is, but not to its meaning.

Until the Supreme Court says otherwise, the State will assume the most power possible and will insist that you have to decrypt your data.

How is allowing access to your home which has stolen goods in it not self-incrimination but divulging a password is? I could ponder, if the officers find a bunch of keys, you are probably not required to say what they are for. You can just not talk. So perhaps we are looking at a similarity, and you aren't required to put forth a password.

It isn't a matter of debate. It's a matter of fact. Locks are security measures designed to keep someone physically away from a thing. It is an actual block in the path to keep an actual thing out of hand.

A lock can be cut. A block can be moved. The only thing keeping a person from getting the thing in hand is effort.

Encryption is not such a thing. No amount of effort, no period of waiting, no fear of effort can ever complete the meaning of something that has been perfectly encrypted. In fact something encrypted as so literally has no meaning. It is not data, it's undistinguishable from randomness. It IS randomness. It has no meaning. The meaning has been removed. Depending on the string and algorithm used to decrypt the message, literally ANY message of that specific length may be produced.

The word 'aardvark' could, similarly, refer to any thing in the universe, or nothing at all. It is nonsense without some context. An encryption's decryption phrase is not a key, it is a context. It is literally a context in which the message makes sense. Any request for that context is litteraly a request for the context of the data to be explained, as much as a request for the context of any other thing, it ought be allowed to be withheld if it is incriminating.

You ought not just change the rules when the context you wish to have reveals a particularly large piece of information.

At that point the protection of a person to not self-incriminate is arbitrary. When is a piece of context 'significant' enough to compel (torture) from a victim?

 

[Jimmy Higgins]

It isn't a matter of debate. It's a matter of fact. Locks are security measures designed to keep someone physically away from a thing. It is an actual block in the path to keep an actual thing out of hand.

A lock can be cut. A block can be moved. The only thing keeping a person from getting the thing in hand is effort.

Encryption is not such a thing.

It is if the Court says it is. That is the beauty of Law. It can be whatever the heck those with the robes on say it is.

No amount of effort, no period of waiting, no fear of effort can ever complete the meaning of something that has been perfectly encrypted. In fact something encrypted as so literally has no meaning. It is not data, it's undistinguishable from randomness. It IS randomness. It has no meaning. The meaning has been removed. Depending on the string and algorithm used to decrypt the message, literally ANY message of that specific length may be produced.

If the meaning is no longer there, it can not be decrypted.

You ought not just change the rules when the context you wish to have reveals a particularly large piece of information.

Lets leave the encryption of personal property alone. What about Facebook? Should Facebook be compelled to allow access to the information you have given them freely? I believe this is a bigger concern that Obama raised in the OP. He feels that any investigator should be able to get at the data. On Facebook, you don't own what you posted.

At that point the protection of a person to not self-incriminate is arbitrary. When is a piece of context 'significant' enough to compel (torture) from a victim?

Made quite the leap there.

 

[NobleSavage]

I need to redo this thread with a poll.

 

[Jarhyn]

It is if the Court says it is. That is the beauty of Law. It can be whatever the heck those with the robes on say it is.

No amount of effort, no period of waiting, no fear of effort can ever complete the meaning of something that has been perfectly encrypted. In fact something encrypted as so literally has no meaning. It is not data, it's undistinguishable from randomness. It IS randomness. It has no meaning. The meaning has been removed. Depending on the string and algorithm used to decrypt the message, literally ANY message of that specific length may be produced.

If the meaning is no longer there, it can not be decrypted.

You ought not just change the rules when the context you wish to have reveals a particularly large piece of information.

Lets leave the encryption of personal property alone. What about Facebook? Should Facebook be compelled to allow access to the information you have given them freely? I believe this is a bigger concern that Obama raised in the OP. He feels that any investigator should be able to get at the data. On Facebook, you don't own what you posted.

At that point the protection of a person to not self-incriminate is arbitrary. When is a piece of context 'significant' enough to compel (torture) from a victim?

Made quite the leap there.

And this is why I would seriously doubt that you ever had any experience, education, or even the barest hint of understanding of information, or linguistic theory. the law does not make a thing. The law can no more make encryption a lock than it can nullify gravity or make one plus one be three. They can SAY a thing is so, and they'd be wrong.

In a OTP XOR encryption (an example of a sufficiently perfect encryption, for our needs here), any message can be produced given the use of the correct pad. This is not to say the message cannot be restored using the correct context. But merely that any message can be produced from the encrypted message using some given context. In fact knowing the encrypted (just the encrypted version) message you can arbitrarily generate pads that will yeild any message you wish.

The data without its pad is nothing, merely randomness. The context is what makes it mean anything. Your inability to grasp this means you should probably recuse yourself

 

[Jason Harvestdancer]

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/

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]

Libertarians practically invented the right to privacy. Progressives dislike it because a person might be thinking something politically incorrect. Neocons like you oppose it because of "the terrorists!"

 

[Jarhyn]

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]

Libertarians practically invented the right to privacy. Progressives dislike it because a person might be thinking something politically incorrect. Neocons like you oppose it because of "the terrorists!"

Wow. Just... Wow. The blanket accusation that progressives don't like privacy because progressives are fascists? That's a new one on me.

Progressives fight harder for the right to free speech and against violations to the fifth and first amendment, and against unethical search and seizure harder than any I have seen! Then again, big L Libertarians seem to think all kinds of actions are 'speech', that all kinds of economic activity in public businesses is 'private' and that 'lawful' constitutes anything a judge who dont know enough about language and math to pass a highschool algebra or programming course declares.

 

[Jason Harvestdancer]

Unless, of course, it comes to cakes.

 

[Jarhyn]

Unless, of course, it comes to cakes.

You apparently didn't read any of that thread. Or my post. You have the disgustingly, grossly mistaken view that public businesses are entitled to private discrescion of clientele. They are not. You are free to make any message you want. You do not get to determine all future contexts for that message, nor can you decide who buys the message. there's a difference between being an honest progressive and a KoolAid drinking SJW. You can see my post on the commissioning of art, for reference.

 

[Jimmy Higgins]

It is if the Court says it is. That is the beauty of Law. It can be whatever the heck those with the robes on say it is.
If the meaning is no longer there, it can not be decrypted.

You ought not just change the rules when the context you wish to have reveals a particularly large piece of information.

Lets leave the encryption of personal property alone. What about Facebook? Should Facebook be compelled to allow access to the information you have given them freely? I believe this is a bigger concern that Obama raised in the OP. He feels that any investigator should be able to get at the data. On Facebook, you don't own what you posted.

At that point the protection of a person to not self-incriminate is arbitrary. When is a piece of context 'significant' enough to compel (torture) from a victim?

Made quite the leap there.

And this is why I would seriously doubt that you ever had any experience, education, or even the barest hint of understanding of information, or linguistic theory. the law does not make a thing. The law can no more make encryption a lock than it can nullify gravity or make one plus one be three. They can SAY a thing is so, and they'd be wrong.

OJ Simpson was found not guilty by the court. It doesn't matter if they are "wrong". The law is as the law has ruled. I think that people have a right to encrypting their info. I do not think the government should be able to have a back door into such encryption. The Government should need a warrant to decrypt.

If the Courts that have people that are too old to appreciate technology rule that encryption is a lock, however, it won't matter. What is worse is that there is likely not going to be a citizen friendly resolution to this. The Government wants access to everything, so Congress will not pass a bill including encryption as a right. It'll be up to people that may be too old to judge on such things.

The data without its pad is nothing, merely randomness. The context is what makes it mean anything. Your inability to grasp this means you should probably recuse yourself

Or maybe that I appreciate that what is verses what has been ruled can be two different things. Smith v Maryland would seem to suggest that.

 

[Jarhyn]

It is if the Court says it is. That is the beauty of Law. It can be whatever the heck those with the robes on say it is.
If the meaning is no longer there, it can not be decrypted.

You ought not just change the rules when the context you wish to have reveals a particularly large piece of information.

Lets leave the encryption of personal property alone. What about Facebook? Should Facebook be compelled to allow access to the information you have given them freely? I believe this is a bigger concern that Obama raised in the OP. He feels that any investigator should be able to get at the data. On Facebook, you don't own what you posted.

At that point the protection of a person to not self-incriminate is arbitrary. When is a piece of context 'significant' enough to compel (torture) from a victim?

Made quite the leap there.

And this is why I would seriously doubt that you ever had any experience, education, or even the barest hint of understanding of information, or linguistic theory. the law does not make a thing. The law can no more make encryption a lock than it can nullify gravity or make one plus one be three. They can SAY a thing is so, and they'd be wrong.

OJ Simpson was found not guilty by the court. It doesn't matter if they are "wrong". The law is as the law has ruled. I think that people have a right to encrypting their info. I do not think the government should be able to have a back door into such encryption. The Government should need a warrant to decrypt.

If the Courts that have people that are too old to appreciate technology rule that encryption is a lock, however, it won't matter. What is worse is that there is likely not going to be a citizen friendly resolution to this. The Government wants access to everything, so Congress will not pass a bill including encryption as a right. It'll be up to people that may be too old to judge on such things.

The data without its pad is nothing, merely randomness. The context is what makes it mean anything. Your inability to grasp this means you should probably recuse yourself

Or maybe that I appreciate that what is verses what has been ruled can be two different things. Smith v Maryland would seem to suggest that.

All it takes is the right people arguing in front of the right judge to fix a bad precedent. It is exactly the lack of people wise enough to argue that encryption is not a lock, the failure of lawyers to use experts in linguistic and information theory to argue for those judges, and unwilling to take unorthodox and entirely correct tacks within the court as fifth amendment protection that causes this issue to keep spiraling.

It remains the case that the application of an arbitrary pad to any given message can yeild any other message. I await the day that someone produced a decrypted laptop whose plaintext reads 'all work and no play makes Jack a dull boy' from start to end, and when asked for the 'key' the court gets the XOR of that message and the encrypted version. Because that is A decrypted version of the data.

 

[bilby]

Given the example of the second amendment to your constitution, it seems unwise to enshrine in that constitution any rights whose scope or impact is likely to be massively altered by future changes in technology.

 

[Bomb#20]

Given the example of the second amendment to your constitution, it seems unwise to enshrine in that constitution any rights whose scope or impact is likely to be massively altered by future changes in technology.

You mean we should be concerned that, just as an amendment that was meant to guarantee the right to a single-shot musket that took 30 seconds to reload has screwed us all over by morphing with the unforeseen advance of the gunsmith's art into a guarantee of the right to a semi-automatic assault rifle, likewise, if we guarantee ourselves the right to use an unbreakable cipher, this will similarly hurt our descendants by morphing into a guarantee that citizens of the future will have the right to use a super-duper extra-special unbreakable cipher?

 

[dismal]

Hey, maybe if you had read my posts and links you'd have come around to my position sooner.

Looks like the problem wasn't me at all.

No apologies necessary. I knew it wasn't.

Oh, you're wrong, you're just as wrong as the judge who issued the opinions, and you're wrong because you don't fight them. Instead you seem to glory and revel in such ignorance, and in the fact that if such ignorance continues, our freedom from self incrimination will evaporate.

Again, you don't seem to have mastered the art of reading what I actually wrote.

You should try it. Might help.

 

[dismal]

jarhyn has been pointing out that encryption isn't a lock so the lock analogy really fails when you talk about encryption.

If I write all my papers in secret code can I be compelled to give them the key to that code? I've provided the papers but should I be able to use my 5th amendment rights to not tell them the key they need to understand those documents?

The question of the day in the courts seems to hinge on whether the government can compel you to produce an unencrypted document.

The government has already decided the government can compel you to produce documents without infringing your 5th amendment right.

I imagine if the government subpoenaed your tax records from 2003 and you produced them smeared in pitch they would argue you were in contempt of the court order because the subpoena implies they are to be produced in readable form.

 

[Jarhyn]

jarhyn has been pointing out that encryption isn't a lock so the lock analogy really fails when you talk about encryption.

If I write all my papers in secret code can I be compelled to give them the key to that code? I've provided the papers but should I be able to use my 5th amendment rights to not tell them the key they need to understand those documents?

The question of the day in the courts seems to hinge on whether the government can compel you to produce an unencrypted document.

The government has already decided the government can compel you to produce documents without infringing your 5th amendment right.

I imagine if the government subpoenaed your tax records from 2003 and you produced them smeared in pitch they would argue you were in contempt of the court order because the subpoena implies they are to be produced in readable form.

Dismal, you understand pretty much nothing of cryptography if you think that such a request even makes sense, when the base document is not in plaintext.

The thing that immediately pops to mind is 'which unencrypted documents'? For paper documents, there is a literally infinite number of possible decrypted versions. For binary data, it might as well be infinite. (Think 256^1000000000000) for a terabyte of data. Further, properly encrypted data is indistinguishable from random 1's and 0's. When an encryption is considered 'broken' it isn't because someone can go in and read the data, generally it means that someone can with good certainty know there is some kind of data there at all.

My deletion algorithm on my PC deletes by overwriting the data with random bits. All the empty space on my hard drive could be encrypted data. In fact I could decrypt that utter nonsense into an arbitrary set of data, by calculating an appropriate pad. Which then is the pad, and which is the data?

 

[Jarhyn]

The court might as well be asking for a 'better wingnut marsupial'. Or a 'flipperdebippit'. 'Waaaah, we can't make a case against you using evidence we have, so we want to order you to produce evidence against yourself!'.

 

[dismal]

The question of the day in the courts seems to hinge on whether the government can compel you to produce an unencrypted document.

The government has already decided the government can compel you to produce documents without infringing your 5th amendment right.

I imagine if the government subpoenaed your tax records from 2003 and you produced them smeared in pitch they would argue you were in contempt of the court order because the subpoena implies they are to be produced in readable form.

Dismal, you understand pretty much nothing of cryptography if you think that such a request even makes sense, when the base document is not in plaintext.

The thing that immediately pops to mind is 'which unencrypted documents'? For paper documents, there is a literally infinite number of possible decrypted versions. For binary data, it might as well be infinite. (Think 256^1000000000000) for a terabyte of data. Further, properly encrypted data is indistinguishable from random 1's and 0's. When an encryption is considered 'broken' it isn't because someone can go in and read the data, generally it means that someone can with good certainty know there is some kind of data there at all.

My deletion algorithm on my PC deletes by overwriting the data with random bits. All the empty space on my hard drive could be encrypted data. In fact I could decrypt that utter nonsense into an arbitrary set of data, by calculating an appropriate pad. Which then is the pad, and which is the data?

I don't see how this is particularly relevant.

To reiterate an actual case with an actual example:

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.

Actual finding:

http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

Note it focuses not on compelling the defendant to produce a password, but on compelling defendant to produce unencrypted laptop. Which in this case, could be and was done.

 

[Jarhyn]

Dismal, you understand pretty much nothing of cryptography if you think that such a request even makes sense, when the base document is not in plaintext.

The thing that immediately pops to mind is 'which unencrypted documents'? For paper documents, there is a literally infinite number of possible decrypted versions. For binary data, it might as well be infinite. (Think 256^1000000000000) for a terabyte of data. Further, properly encrypted data is indistinguishable from random 1's and 0's. When an encryption is considered 'broken' it isn't because someone can go in and read the data, generally it means that someone can with good certainty know there is some kind of data there at all.

My deletion algorithm on my PC deletes by overwriting the data with random bits. All the empty space on my hard drive could be encrypted data. In fact I could decrypt that utter nonsense into an arbitrary set of data, by calculating an appropriate pad. Which then is the pad, and which is the data?

I don't see how this is particularly relevant.

To reiterate an actual case with an actual example:

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.

Actual finding:

http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

Note it focuses not on compelling the defendant to produce a password, but on compelling defendant to produce unencrypted laptop. Which in this case, could be and was done.

dismal, imagine a situation where someone has an unfilled ledger and a photographic memory. Whenever they do books, they sit down in front of a blank ledger sheet, and pantomime doing their books. They have committed the data to memory. Asking for an unencrypted laptop in the situation of that case is no different from asking the accountant to produce non-empty ledger sheets. The data exists divided. It has been broken into pieces. Only by asking the owner to reveal more data can it be completed.

If the defendant had produced a laptop containing nothing but the repeated words 'all work and no play makes Jack a dull boy' through the entire assumed encrypted section, he would have been well within his rights.

As you can see at the end there, it was produced by the husband, not by the defendant. Fifth amendment protects you from you, not from others. In fact, the fifth amendment issue was never answered in that case. He wasn't forced to provide the data, his husband did.

 

[dismal]

I don't see how this is particularly relevant.

To reiterate an actual case with an actual example:

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.

Actual finding:

http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf

Note it focuses not on compelling the defendant to produce a password, but on compelling defendant to produce unencrypted laptop. Which in this case, could be and was done.

dismal, imagine a situation where someone has an unfilled ledger and a photographic memory. Whenever they do books, they sit down in front of a blank ledger sheet, and pantomime doing their books. They have committed the data to memory. Asking for an unencrypted laptop in the situation of that case is no different from asking the accountant to produce non-empty ledger sheets. The data exists divided. It has been broken into pieces. Only by asking the owner to reveal more data can it be completed.

If the defendant had produced a laptop containing nothing but the repeated words 'all work and no play makes Jack a dull boy' through the entire assumed encrypted section, he would have been well within his rights.

As you can see at the end there, it was produced by the husband, not by the defendant. Fifth amendment protects you from you, not from others.

OK, I imagined all that.

Now, back in reality in the Fricosu case they compelled her to produce an unencrypted laptop, and such thing appears to have been possible since it was produced.

 

[Jarhyn]

How do you not get it: an 'unencrypted' laptop is an 'encrypted' laptop. An 'encrypted' laptop is an 'unencrypted' laptop. The terms have no meaning aside from reference contexts. Any piece of data at all can be 'decrypted' into any other piece of data. I could, given time, decrypt your laptop into child porn. Or a plot to assassinate a politician.all it requires is the correct pad to be used. the judge issued a meaningless, worthless, or illegal order. That's all there is to it. The fact that her husband happened to know her secrets is her own fault.