Should there be a constitutional right to strong encryption

[Bomb#20]

In the mean time maybe you guys should answer my question: Should there be a right -- not how do we get there.

Well, that's really two questions. Should the state be able to prosecute you for using strong encryption? Should they be able to prosecute you and/or hold you in contempt for refusing to reveal your secret key? The former would seem to be a free speech issue, the latter a search & seizure issue. (And of course both are privacy issues.) As to the former, strong encryption is too easy to implement and too hard to prove for outlawing it to get the government anything it wants, never mind the political impossibility of outlawing it now that half the economy runs on it. There's a reason the government held an inventors' contest and published the winning algorithm.

So the problem is what to do about "rubber hose cryptanalysis". Which brings us to the next question: supposing they're allowed to jail you for not giving up your key when served with a warrant, what do they do about the "I don't remember my password any more" defense? If they can jail you anyway, then they'll be locking up innocent people who really have forgotten their passwords and have broken no laws but can't prove it; so that option amounts to abolishing innocent-until-proven-guilty. But if they can't jail you anyway, then the law that lets them demand your key will be unenforceable. So anybody who they're really sure knows his key and who they really seriously want that key from will be put on a plane to Turkey, where the rubber hose isn't a metaphor. But then, they'll probably do that anyway -- in any case where the stakes are high a suspect will just do his time in jail for concealing his key rather than face a worse punishment for whatever crime he's hiding. So from the public's viewpoint there really doesn't seem to be much of a down side to government recognizing the right to not reveal your key. Of course there's a down side from the government's viewpoint, but then this is a "should" question, which pretty much eliminates governments from having standing to comment.

In any event, regardless of what rights the law says you have, it's risky to rely on courts to uphold them. The real protection from being forced to give up your key, either in an American court or in a Turkish army post, is steganography.

 

[Jarhyn]

In the mean time maybe you guys should answer my question: Should there be a right -- not how do we get there.

Well, that's really two questions. Should the state be able to prosecute you for using strong encryption? Should they be able to prosecute you and/or hold you in contempt for refusing to reveal your secret key? The former would seem to be a free speech issue, the latter a search & seizure issue. (And of course both are privacy issues.) As to the former, strong encryption is too easy to implement and too hard to prove for outlawing it to get the government anything it wants, never mind the political impossibility of outlawing it now that half the economy runs on it. There's a reason the government held an inventors' contest and published the winning algorithm.

So the problem is what to do about "rubber hose cryptanalysis". Which brings us to the next question: supposing they're allowed to jail you for not giving up your key when served with a warrant, what do they do about the "I don't remember my password any more" defense? If they can jail you anyway, then they'll be locking up innocent people who really have forgotten their passwords and have broken no laws but can't prove it; so that option amounts to abolishing innocent-until-proven-guilty. But if they can't jail you anyway, then the law that lets them demand your key will be unenforceable. So anybody who they're really sure knows his key and who they really seriously want that key from will be put on a plane to Turkey, where the rubber hose isn't a metaphor. But then, they'll probably do that anyway -- in any case where the stakes are high a suspect will just do his time in jail for concealing his key rather than face a worse punishment for whatever crime he's hiding. So from the public's viewpoint there really doesn't seem to be much of a down side to government recognizing the right to not reveal your key. Of course there's a down side from the government's viewpoint, but then this is a "should" question, which pretty much eliminates governments from having standing to comment.

In any event, regardless of what rights the law says you have, it's risky to rely on courts to uphold them. The real protection from being forced to give up your key, either in an American court or in a Turkish army post, is steganography.

this, I think, is far more relevant to what dismal was fumbling about trying to ask. Essentially, the government has already slipped on the banana peel of evil and shit on the constitution, if ever someone looks back at a precedent requesting an unencrypted device to be produced where none will exist without someone being forced to engage in self-incrimination. Tom isn't the only person in the world technologically and linguistically challenged in the matter of understanding the nature of encryption. The fact that encryption isn't a 'lock' doesn't mean that every judge everywhere understands that. So you'll get the odd case where a judge who doesn't know what encryption really is demands someone violate their own 5th amendment rights because they are ignorant. And then someone much more ignorant then thinks that ignorance somehow authorizes further breaches of fifth amendment rights.

Eventually the fascist states of ameria's thought police will decide to beat people until they admit to thingsonce they've dared contest a traffic ticket, and there'll be nothing to be done about it.

Really, what do we do when we start recording our memories in machines? What do we do when our records are on a hard drive that backs up our brains? Can they subpoena those unencrypted too? See every racy little thought that a person saw because it was encrypted right next to their outlawed hentai that the warrant is for? The problem is that eventually our technology, our laptops and phones will even more directly be part of our minds, and the right to not reveal the meaning of their content will not go away.

 

[barbos]

Viruses or random programs can create encrypted or encrypted like files. So imagine being thrown to jail for failing to "explain" such file to the government.

 

[dismal]

Well, that's really two questions. Should the state be able to prosecute you for using strong encryption? Should they be able to prosecute you and/or hold you in contempt for refusing to reveal your secret key? The former would seem to be a free speech issue, the latter a search & seizure issue. (And of course both are privacy issues.) As to the former, strong encryption is too easy to implement and too hard to prove for outlawing it to get the government anything it wants, never mind the political impossibility of outlawing it now that half the economy runs on it. There's a reason the government held an inventors' contest and published the winning algorithm.

So the problem is what to do about "rubber hose cryptanalysis". Which brings us to the next question: supposing they're allowed to jail you for not giving up your key when served with a warrant, what do they do about the "I don't remember my password any more" defense? If they can jail you anyway, then they'll be locking up innocent people who really have forgotten their passwords and have broken no laws but can't prove it; so that option amounts to abolishing innocent-until-proven-guilty. But if they can't jail you anyway, then the law that lets them demand your key will be unenforceable. So anybody who they're really sure knows his key and who they really seriously want that key from will be put on a plane to Turkey, where the rubber hose isn't a metaphor. But then, they'll probably do that anyway -- in any case where the stakes are high a suspect will just do his time in jail for concealing his key rather than face a worse punishment for whatever crime he's hiding. So from the public's viewpoint there really doesn't seem to be much of a down side to government recognizing the right to not reveal your key. Of course there's a down side from the government's viewpoint, but then this is a "should" question, which pretty much eliminates governments from having standing to comment.

In any event, regardless of what rights the law says you have, it's risky to rely on courts to uphold them. The real protection from being forced to give up your key, either in an American court or in a Turkish army post, is steganography.

this, I think, is far more relevant to what dismal was fumbling about trying to ask. Essentially, the government has already slipped on the banana peel of evil and shit on the constitution, if ever someone looks back at a precedent requesting an unencrypted device to be produced where none will exist without someone being forced to engage in self-incrimination. Tom isn't the only person in the world technologically and linguistically challenged in the matter of understanding the nature of encryption. The fact that encryption isn't a 'lock' doesn't mean that every judge everywhere understands that. So you'll get the odd case where a judge who doesn't know what encryption really is demands someone violate their own 5th amendment rights because they are ignorant. And then someone much more ignorant then thinks that ignorance somehow authorizes further breaches of fifth amendment rights.

Eventually the fascist states of ameria's thought police will decide to beat people until they admit to thingsonce they've dared contest a traffic ticket, and there'll be nothing to be done about it.

Really, what do we do when we start recording our memories in machines? What do we do when our records are on a hard drive that backs up our brains? Can they subpoena those unencrypted too? See every racy little thought that a person saw because it was encrypted right next to their outlawed hentai that the warrant is for? The problem is that eventually our technology, our laptops and phones will even more directly be part of our minds, and the right to not reveal the meaning of their content will not go away.

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.

 

[NobleSavage]

No, there has to be some logic extension so pony rides are out.

What clause of their powers necessitates some logic extension?

Nothing, it's just tradition and the way it works. If you look their stated powers Judicial Review is not mentioned. The court straight up invented the idea that it could declare laws unconstitutional. See Marbury v. Madison

 

[NobleSavage]

The 14th is about applying it to states. The right to privacy was make up out of various other parts of the Bill of Rights. The entire history of the court has been inventing shit that wasn't necessary the intent of the founders. And intent is just one of about five different methods of interpretation.

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

- - - Updated - - -

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.

 

[dx713]

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.

Yeah, but how would that revised interpretation of the second amendment butter their (or their supporters') bottom line?
Don't forget what makes the NRA fight so hard on the gun control issue.

 

[Jimmy Higgins]

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

- - - Updated - - -

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.

That right for your home materials is already implied in the 4th Amendment. Things get funky when it comes to your material on private property. I doubt you'll see a Constitutional Amendment as the Federal Government wants to spy on anyone they can. So that means the Supreme Court must find reason to incorporate such a right into the existing setup. Sadly, I think this Supreme Court is so technologically stupid, they are incapable of understanding the scope of the issue.

 

[Jarhyn]

this, I think, is far more relevant to what dismal was fumbling about trying to ask. Essentially, the government has already slipped on the banana peel of evil and shit on the constitution, if ever someone looks back at a precedent requesting an unencrypted device to be produced where none will exist without someone being forced to engage in self-incrimination. Tom isn't the only person in the world technologically and linguistically challenged in the matter of understanding the nature of encryption. The fact that encryption isn't a 'lock' doesn't mean that every judge everywhere understands that. So you'll get the odd case where a judge who doesn't know what encryption really is demands someone violate their own 5th amendment rights because they are ignorant. And then someone much more ignorant then thinks that ignorance somehow authorizes further breaches of fifth amendment rights.

Eventually the fascist states of ameria's thought police will decide to beat people until they admit to thingsonce they've dared contest a traffic ticket, and there'll be nothing to be done about it.

Really, what do we do when we start recording our memories in machines? What do we do when our records are on a hard drive that backs up our brains? Can they subpoena those unencrypted too? See every racy little thought that a person saw because it was encrypted right next to their outlawed hentai that the warrant is for? The problem is that eventually our technology, our laptops and phones will even more directly be part of our minds, and the right to not reveal the meaning of their content will not go away.

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.

 

[Jarhyn]

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

- - - Updated - - -

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.

 

[Jimmy Higgins]

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

- - - Updated - - -

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?

 

[NobleSavage]

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

- - - Updated - - -

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.

A lock is a decent analogy. It's not perfect... Shit, you could print out the source code and say it's free speech.

 

[ksen]

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?

 

[Jimmy Higgins]

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

That would be accounting logic. Encryption is about preventing someone from see the data. The analogy is close enough. The legal code may require shifting, but we are on the same ball field.

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?

If they have a warrant, yes, I think they do. But based on what was said in DC, it doesn't appear that DC is talking about warrants because spies were mentioned. So the information on your smartphone should be privileged until the State can demonstrate they have just cause to search it.

The unsettled problem is what protection exists on websites or private companies? Libraries (Kurt Vonnegut called Librarians the last defenders of the 1st Amendment) already have an extremely high standard of not sharing patron book withdrawals. Shall Amazon or Facebook or whomever be compelled to make their data available without a warrant.

 

[NobleSavage]

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?

My opinion. No. If I have a safe the police can try and break into it all they want. If my documents are in a secret code I've essentially locked up the meaning to anyone without the key. What the government wants to do here is say: "you can buy a safe, but we have to have the combination on file just in case you are a terrorist-pedophile."

 

[NobleSavage]

The other part of my OP was "security tools". I'll give you an example: there is a little command line program called Nmap. You can do a million legitimate and legal things with it. However, if you were ISIS looking to fuck up SCADA systems, they would most likely first probe the network with Nmap. I don't want to see a day where you have to have a Federal permit and pass a security background check to use Nmap. I'd be happy to swap guns for security tools and strong crypto in the 2nd amendment.

 

[Jimmy Higgins]

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?

My opinion. No. If I have a safe the police can try and break into it all they want. If my documents are in a secret code I've essentially locked up the meaning to anyone without the key. Basically what the government wants to do here is say: "you can buy a safe, but we have to have the combination on file just in case you are a terrorist-pedophile."

In general, they are required to demonstrate to the Courts that they have reason to believe you are one. The State can't just show up at your house and demand entry and search your home.

And you keep bringing up the second amendment, it couldn't possibly be less relevant to the discussion on hand.

 

[Jarhyn]

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

- - - Updated - - -

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.

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'.

Why should this protection not extend to allowing a person to refuse to explain data on a hard drive? They have an entitlement to the data as it is, but not to its meaning.

 

[NobleSavage]

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

- - - Updated - - -

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.

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'.

Why should this protection not extend to allowing a person to refuse to explain data on a hard drive? They have an entitlement to the data as it is, but not to its meaning.

Because, "think of the children."

 

[Jimmy Higgins]

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

- - - Updated - - -

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.