Should there be a constitutional right to strong encryption

[NobleSavage]

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.

 

[Jason Harvestdancer]

It depends on whether you think the constitution and the bill of rights are a) a limited grant of specific powers for the government or b) a limited grant of specific rights for the people.

I take the former, and therefore of course there is a right to encryption. There's a right to everything that isn't specifically restricted.

 

[NobleSavage]

It depends on whether you think the constitution and the bill of rights are a) a limited grant of specific powers for the government or b) a limited grant of specific rights for the people.

I take the former, and therefore of course there is a right to encryption. There's a right to everything that isn't specifically restricted.

And right off the bat we dive into constitutional interpretation. I agree with your conclusion, but now how you got there. Which is fine.

 

[Jimmy Higgins]

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.

I'll arguments not based on Consitutional Law for $800 Alex.

The issue would be with the 4th Amendment.

The Constitution does not guarantee a right to absolute privacy. What it does do is say the Government can not inject itself into someone's property and life without a warrant. Unfortunately, a ruling in the 70s made this a bit more vague, when they allowed wiretapping without a warrant.

 

[Tom Sawyer]

I agree with Jason. If the government has not been specifically granted a power, the government should not have that power.

An argument can be made that a way should exist for the police to be able to view the encrypted information if the proper procedures have been followed, but I can't think of any current governments which have demonstrated the ability to avoid horrendously abusing that sort of power.

 

[dismal]

It depends on whether you think the constitution and the bill of rights are a) a limited grant of specific powers for the government or b) a limited grant of specific rights for the people.

I take the former, and therefore of course there is a right to encryption. There's a right to everything that isn't specifically restricted.

Yeah, I think the default is "it's mine of course I can encrypt it". What I do with my words or data is no one else's business.

Now, whether the government can compel me to produce these words in a search deemed reasonable, with probable cause, etc may be another matter. I believe it has been found, rightly or wrongly, that our right against self-incrimination does not extend to subpoenaed documents etc.

 

[Jimmy Higgins]

I agree with Jason. If the government has not been specifically granted a power, the government should not have that power.

An argument can be made that a way should exist for the police to be able to view the encrypted information if the proper procedures have been followed, but I can't think of any current governments which have demonstrated the ability to avoid horrendously abusing that sort of power.

In a Supreme Court case involving the State of Maryland, the Court ruled that once a person puts data into the hands of a private company, that data is no longer privileged.

We have come a long way since then and this issue needs to be resolved immediately, which in Supreme Court time is about 20 years.

 

[NobleSavage]

I agree with Jason. If the government has not been specifically granted a power, the government should not have that power.

Yeah, yeah...but if Congress passes a law concerning cryptography it will sail right through the Commerce Clause. Then someone with standing would have to start a lawsuit suit based based on the 4th amendment and the "Right to Privacy". The current SCOUTS isn't so hip on "The Right of Privacy." A novel approach would be the 2nd amendment which they seem to like these days.

 

[dismal]

It is appears the cases are a bit of a jumble so far:

United States[edit]

The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves, and there is currently no law regarding key disclosure in the United States. However, the federal case In re Boucher may be influential as case law. In this case, a man's laptop was inspected by customs agents and child pornography was discovered. The device was seized and powered-down, at which point disk encryption technology made the evidence unavailable. The judge argued that since the content had already been seen by the customs agents, Boucher's encryption password "adds little or nothing to the sum total of the Government's information about the existence and location of files that may contain incriminating information."[23][24]

In another case, a district court judge ordered a Colorado woman to decrypt her laptop so prosecutors can use the files against her in a criminal case: "I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," Colorado U.S. District Judge Robert Blackburn ruled on January 23, 2012.[25] In Commonwealth v. Gelfgatt,[26] the court ordered a suspect to decrypt his computer, citing exception to Fifth Amendment can be invoked because "an act of production does not involve testimonial communication where the facts conveyed already are known to the government...".[27]

However, in United States v. Doe, the United States Court of Appeals for the Eleventh Circuit ruled on 24 February 2012 that forcing the decryption of one's laptop violates the Fifth Amendment.[28][29]

The Federal Bureau of Investigation may also issue national security letters that require the disclosure of keys for investigative purposes.[30] One company, Lavabit, chose to shut down rather than surrender its master private keys.

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

 

[Jimmy Higgins]

I agree with Jason. If the government has not been specifically granted a power, the government should not have that power.

Yeah, yeah...but if Congress passes a law concerning cryptography it will sail right through the Commerce Clause. Then someone with standing would have to start a lawsuit suit based based on the 4th amendment and the "Right to Privacy". The current SCOUTS isn't so hip on "The Right of Privacy." A novel approach would be the 2nd amendment which they seem to like these days.

The 2nd Amendment is about guns, not privacy. The right to privacy is sheltered in parts within the 4th amendment.

 

[NobleSavage]

I agree with Jason. If the government has not been specifically granted a power, the government should not have that power.

An argument can be made that a way should exist for the police to be able to view the encrypted information if the proper procedures have been followed, but I can't think of any current governments which have demonstrated the ability to avoid horrendously abusing that sort of power.

In a Supreme Court case involving the State of Maryland, the Court ruled that once a person puts data into the hands of a private company, that data is no longer privileged.

We have come a long way since then and this issue needs to be resolved immediately, which in Supreme Court time is about 20 years.

Someone has to start a suit. Has anyone? If we brings states into this then we have to use the 14th amendment as well.

 

[NobleSavage]

Yeah, yeah...but if Congress passes a law concerning cryptography it will sail right through the Commerce Clause. Then someone with standing would have to start a lawsuit suit based based on the 4th amendment and the "Right to Privacy". The current SCOUTS isn't so hip on "The Right of Privacy." A novel approach would be the 2nd amendment which they seem to like these days.

The 2nd Amendment is about guns, not privacy. The right to privacy is sheltered in parts within the 4th amendment.

The 2nd amendment is about what SCOUTS says it is, not what you say it is. If SCOUTS accepts the popular notion that the 2nd amendment is about an individuals protection from the government then they could logically say this right granted by the 2nd also extends to crypto.

 

[Tom Sawyer]

The 2nd Amendment is about guns, not privacy. The right to privacy is sheltered in parts within the 4th amendment.

The 2nd amendment is about what SCOUTS says it is, not what you say it is. If SCOUTS accepts the popular notion that the 2nd amendment is about an individual protection from the government then they could logically say this right granted by the 2nd also extends to crypto.

While that's true and the SC has the authority to declare that the 2nd Amendment mandates that the government has a constitutional requirement to provide free pony rides for school children every second Friday, it's kind of a twisted interpretation of the text.

 

[dismal]

Yeah, yeah...but if Congress passes a law concerning cryptography it will sail right through the Commerce Clause. Then someone with standing would have to start a lawsuit suit based based on the 4th amendment and the "Right to Privacy". The current SCOUTS isn't so hip on "The Right of Privacy." A novel approach would be the 2nd amendment which they seem to like these days.

The 2nd Amendment is about guns, not privacy. The right to privacy is sheltered in parts within the 4th amendment.

I think you mean it was teased out of the 14th.

Those who rely on plain language and don't feel compelled to accept the historical bullshit of the USSC would say it's in the Amendment IX-X combo.

The logic of finding it in the 14th is extremely dubious at best.

 

[NobleSavage]

Fuck. This tread went exactly where I didn't want to go. Constitution interpretation. I can back up my bullshit, but not right now. I have to deal with work, so I'll do my best to come back.

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

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The 2nd amendment is about what SCOUTS says it is, not what you say it is. If SCOUTS accepts the popular notion that the 2nd amendment is about an individual protection from the government then they could logically say this right granted by the 2nd also extends to crypto.

While that's true and the SC has the authority to declare that the 2nd Amendment mandates that the government has a constitutional requirement to provide free pony rides for school children every second Friday, it's kind of a twisted interpretation of the text.

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

 

[NobleSavage]

The 2nd Amendment is about guns, not privacy. The right to privacy is sheltered in parts within the 4th amendment.

I think you mean it was teased out of the 14th.

Those who rely on plain language and don't feel compelled to accept the historical bullshit of the USSC would say it's in the Amendment IX-X combo.

The logic of finding it in the 14th is extremely dubious at best.

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.

 

[Tom Sawyer]

While that's true and the SC has the authority to declare that the 2nd Amendment mandates that the government has a constitutional requirement to provide free pony rides for school children every second Friday, it's kind of a twisted interpretation of the text.

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

What clause of their powers necessitates some logic extension?

 

[dismal]

I think you mean it was teased out of the 14th.

Those who rely on plain language and don't feel compelled to accept the historical bullshit of the USSC would say it's in the Amendment IX-X combo.

The logic of finding it in the 14th is extremely dubious at best.

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 intent of the founding fathers is as clear as a bell in the 9th and 10th.

But subsequent judges decided to gut the 9th and 10th so when the court decided it wanted a right to privacy it eventually settled on teasing it out of the 14th.

http://en.wikipedia.org/wiki/Griswold_v._Connecticut

 

[Jimmy Higgins]

I think you mean it was teased out of the 14th.

Those who rely on plain language and don't feel compelled to accept the historical bullshit of the USSC would say it's in the Amendment IX-X combo.

The logic of finding it in the 14th is extremely dubious at best.

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.

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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.

 

[dismal]

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.

Incorporating an amendment, any amendment, allows the court to apply it against the states.

But Incorporation is not the process where rights themselves are found.