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If you're going to make these arguments you need to allow that there are two sides to the argument. It's not that the other side is completely wrong. The kinds

If you're going to make these arguments you need to allow that there are two sides to the argument. It's not that the other side is completely wrong. The kinds of encryption being discussed go beyond the fourth amendment when it comes to reasonable searches and seizures. It's not an absolute right, and the kind of encryption we're talking about goes beyond any protections seen in the past (short of, perhaps, being able to physically store stuff in safety deposit boxes of banks in certain countries -- just as we might need to wait decades for encrypted data to be decrypted, it took decades for seekers of justice to access Nazi bank accounts). On the other hand, we keep so much of our lives in our phones and computers (in a sense they are extensions of our minds). If we're going to make this argument, perhaps it should be more like the fifth amendment. After all, we may literally have our personal computers built into our bodies in the future, what rights would we have over the data in them? There is some legal precedent for the fifth amendment argument -- whether personal diaries are protected is a subject of contention, and are not cell phone data stores very much like personal diaries? Unlike the fourth amendment, the fifth amendment is pretty much absolute, so it's a stronger case. The fourth amendment was not written with strong encryption in mind, just as the second amendment did not consider nuclear weapons. So far, even the NRA hasn't tried to argue that we have a second amendment right to tanks and nuclear weapons.

hdevalence 11y ago
> The fourth amendment was not written with strong encryption in mind The fourth amendment, and other constitutional issues, were discussed via encrypted mail. It's not like strong encryption (strong in the sense of 'beyond contemporary cryptanalysis', just as the cryptography we have today is maybe not secure against future developments, e.g. quantum computing) was an unknown concept 200 years ago. Indeed, a derivative of a device Thomas Jefferson used for the purpose was used by the US Army in the first part of the 20th century.
- xenophonf 11y ago
  If, like me, you're curious about this, here are some interesting links: http://lfb.org/thomas-jefferson-used-encryption/ http://lfb.org/thomas-jefferson-used-encryption/ https://books.google.com/books?id=xI_Um3dTTeYC&pg=PA176&lpg=PA176&dq=office+of+foreign+affairs+1785+resolution+inspect+mail&source=bl&ots=iWJeWslQel&sig=3TehrLIRW5VjYiPu4o3a0wlBIX8&hl=en&sa=X&ved=0CDEQ6AEwA2oVChMIoInNhaahxwIVUQWSCh09swAc#v=onepage&q=office%20of%20foreign%20affairs%201785%20resolution%20inspect%20mail&f=false https://books.google.com/books?id=xI_Um3dTTeYC&pg=PA176&lpg=... https://en.wikipedia.org/wiki/Jefferson_disk https://en.wikipedia.org/wiki/Jefferson_disk I might post on /r/AskHistorians about this 1785 Continental Congress resolution. Everyone, including Ludlow, seems to quote Unmailable rather than referring directly to source material, and I haven't been able to find any kind of archive of pre-Constitutional law (which might have a copy of the actual resolution in it). In any case, that the government of the time was tampering with long distance communications, i.e., postal mail, with the express purpose of interfering with political discourse should serve as a reminder to everyone to be ever vigilant when some public servant or politician proposes to weaken safeguards against the same.
- Tloewald 11y ago
  Good point! But the key was either something a person had to memorize or a physical object. So it comes down to questioning (which goes back to the 5th amendment) or search and seizure (which is what the 4th amendment is clearly about). In any event, both the impenetrability of strong encryption and the scope (the value of the data that can be encrypted) are perhaps further beyond hand-executed codes than an atom bomb is beyond a musket.
  - TheCoelacanth 11y ago
    > But the key was either something a person had to memorize or a physical object. So it comes down to questioning (which goes back to the 5th amendment) or search and seizure (which is what the 4th amendment is clearly about). The same is true of modern encryption. At some point the key (or the passphrase used to secure the actual key) will either be written down (or stored digitally in plaintext) or memorized.
alyandon 11y ago
> The fourth amendment was not written with strong encryption in mind I don't necessarily see why that must have been the case when the bill of rights was authored. For as long as language has existed, human beings have possessed the ability to encrypt sensitive communications without needing a computer to do it for them.

hdevalence 11y ago

> The fourth amendment was not written with strong encryption in mind The fourth amendment, and other constitutional issues, were discussed via encrypted mail. It's not like strong encryption (strong in the sense of 'beyond contemporary cryptanalysis', just as the cryptography we have today is maybe not secure against future developments, e.g. quantum computing) was an unknown concept 200 years ago. Indeed, a derivative of a device Thomas Jefferson used for the purpose was used by the US Army in the first part of the 20th century.

xenophonf 11y ago
If, like me, you're curious about this, here are some interesting links: http://lfb.org/thomas-jefferson-used-encryption/ http://lfb.org/thomas-jefferson-used-encryption/ https://books.google.com/books?id=xI_Um3dTTeYC&pg=PA176&lpg=PA176&dq=office+of+foreign+affairs+1785+resolution+inspect+mail&source=bl&ots=iWJeWslQel&sig=3TehrLIRW5VjYiPu4o3a0wlBIX8&hl=en&sa=X&ved=0CDEQ6AEwA2oVChMIoInNhaahxwIVUQWSCh09swAc#v=onepage&q=office%20of%20foreign%20affairs%201785%20resolution%20inspect%20mail&f=false https://books.google.com/books?id=xI_Um3dTTeYC&pg=PA176&lpg=... https://en.wikipedia.org/wiki/Jefferson_disk https://en.wikipedia.org/wiki/Jefferson_disk I might post on /r/AskHistorians about this 1785 Continental Congress resolution. Everyone, including Ludlow, seems to quote Unmailable rather than referring directly to source material, and I haven't been able to find any kind of archive of pre-Constitutional law (which might have a copy of the actual resolution in it). In any case, that the government of the time was tampering with long distance communications, i.e., postal mail, with the express purpose of interfering with political discourse should serve as a reminder to everyone to be ever vigilant when some public servant or politician proposes to weaken safeguards against the same.
Tloewald 11y ago
Good point! But the key was either something a person had to memorize or a physical object. So it comes down to questioning (which goes back to the 5th amendment) or search and seizure (which is what the 4th amendment is clearly about). In any event, both the impenetrability of strong encryption and the scope (the value of the data that can be encrypted) are perhaps further beyond hand-executed codes than an atom bomb is beyond a musket.
- TheCoelacanth 11y ago
  > But the key was either something a person had to memorize or a physical object. So it comes down to questioning (which goes back to the 5th amendment) or search and seizure (which is what the 4th amendment is clearly about). The same is true of modern encryption. At some point the key (or the passphrase used to secure the actual key) will either be written down (or stored digitally in plaintext) or memorized.

alyandon 11y ago

> The fourth amendment was not written with strong encryption in mind I don't necessarily see why that must have been the case when the bill of rights was authored. For as long as language has existed, human beings have possessed the ability to encrypt sensitive communications without needing a computer to do it for them.