12 ms·

Judge to DOJ: Not All Writs

124 points by sinak 11y ago

enahs-sf 11y ago
I realize it's basically impossible to pass a constitutional amendment at this point, but guaranteeing the right to privacy would be pretty awesome.
- JoshTriplett 11y ago
  Part of the trick would be defining privacy in a way that can't be "interpreted" around by the Supreme Court.
  - zyxley 11y ago
    Exactly. The Fourth Amendment should already be plenty for this, but a ton of exceptions have been carved out of it, along with the general interpretation that if your data is on someone else's server then no warrant is needed to access it.
    - rayiner 11y ago
      In this case, the government has a warrant to search the device. So what in the 4th amendment "should already be plenty for this?"
      - Pyxl101 11y ago
        The government doesn't have a warrant to force the device manufacturer to add a feature to the phones making them easier to search in the future.
        rayiner 11y ago
        By its text, the 4th amendment applies to "searches" and "seizures." Requiring a back door is not itself a search or seizure, any more than requiring airbags is one. I oppose requiring backdoors. I might even oppose requiring airbags. But neither is likely unconstitutional.
        zaroth 11y ago
        Then you rely upon the First Amendment, freedom of speech, and prior restraint of speech is strict scrutiny. There is no way a backdoor survives that at the Supreme Court, there is simply too many cases where strong encryption is obviously required for legal use. Speaking privately is the rockbed of free speech. Without privacy of speech, there absolutely never be any thought that speech is free. To try to restrict the privacy of communication is antithetical. Obviously that doesn't mean people wont try to do it 'for the better good' but easily usable strong encryption is reality, just the same as the idea that strong encryption isn't going to stop you from being tracked and monitored. I'm fairly confident that government doesn't need this, and government won't get it. But partly that is confirmation bias because the idea they just might get it is ludicrous to me. It would be as pointless as it is shameful.
        rayiner 11y ago
        Speaking privately was not, historically, the bedrock of free speech. For the entire history of the First Amendment, the government has been able to get access to private speech with a warrant: they could search your person, house, papers and, effects and even compel people you talked to to tell the government what you said. I don't think the government needs encryption backdoors either. But I also don't think they implicate free speech, at least in the First Amendment sense of the concept. That has always focused on protecting public political and artistic expressions, not on making personal communications beyond the reach of law enforcement.
        zaroth 11y ago
        I found 'The Search and Seizure of Private Papers: Fourth and Fifth Amendment Considerations' (1973) [1] a very interesting read, and draw from it heavily in the following... A more updated brief can be found under '' "Dearest Property": Digital Evidence and the History of Private "Papers" as Special Objects of Search and Seizure' (2013) [2] You're right, and I mispoke, it's not a matter of free speech as it is a matter of ensuring the privacy and security of the individual. However I think it's incorrect to say that for the entire history of the United States they could search your person, house, papers and, effects. This is matter for the 4th and 5th not 1st, starting back with Boyd v United States in 1886, and has seen much movement and refinement in the last 40 years particularly; The seizure or compulsory production of a man's private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty or forfeiture, is equally within the prohibition of the Fifth Amendment. Both amendments relate to the personal security of the citizen. They nearly run into, and mutually throw light upon, each other. When the thing forbidden in the Fifth Amendment, namely, compelling a man to be a witness against himself, is the object of a search and seizure of his private papers, it is an "unreasonable search and seizure" within the Fourth Amendment. U.S. Supreme Court Boyd v. United States 116 U.S. 616 (1886) 'Boyd thus created a "zone of privacy that [could] not be invaded by the police through raids, by the legislators through laws, or by magistrates through the issuance of warrants.' (Warden v. Hayden, 387 U.S. 294, 313 (1967)) [T]here are some crimes, such, for instance, as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no paper-search in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem, that search for evidence is disallowed upon the same principle. Then, too the innocent would be confounded with the guilty' -- Entick v. Carrington The sanctity of papers was limited in Gouled in 1921, taken away more fully by Warden in 1967. What was once considered an unwarrantable intrusion into personal privacy, and compulsary self-incrimination, was now considered a reasonable trade-off against personal privacy and sanctioned "after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of 'a neutral and detached magistrate.' In Katz v United States in 1967, In Katz the government introduced evidence of the petitioner's part of a telephone conversation to prove that he had transmitted wagering information by telephone in violation of federal law.87 The Court, while finding the particular search to be invalid since it was not authorized by a warrant, stated: [I]t is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. "However, the utterances at issue in Katz were wagering information and thus would be classified as means and instrumentalities of a crime rather than as mere evidence. 2 Furthermore, Katz did not deal with private papers and thus offers little assistance in determining whether there are circumstances in which private papers should be immune from search and seizure." Diaries, and even private communication, to the extent that they are not instrumentalities and means by which a crime is committed, have long been seen as deserving protection even against seizure with a warrant. "Diaries, for instance, give rise to important privacy interests, are not a substantial means of committing any offense, and need not be seized for the general enforcement of any particular law. Their seizure in whole or part should not be countenanced unless the contents sought to be seized can be described with such particularity that it is clear that privacy interests have already been compromised." 'The positive law has closed its eyes on history. Federal Rule of Criminal Procedure 41 flatly equates “documents, books, papers, any other tangible objects, and information.” The rule plainly contemplates “the seizure of electronic storage media” for “later off-site copying or review.” Today, federal agents may obtain warrants to seize and carry away entire troves of digitally stored private papers and peruse those files at remote locations, one by one. What the leading Whig polemicist denounced as an “abominable outrage,” what the common law condemned as a relic of the Star Chamber, and what no American legislature authorized for the first eighty years of Independence, has become standard law enforcement procedure.' [2] [1] - http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1119&context=llr http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=11... [2] - http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=jclc http://scholarlycommons.law.northwestern.edu/cgi/viewcontent...
      - Zigurd 11y ago
        The government gets the bits. Cryptography is older than computers. A warrant has never guaranteed access to cleartext.
  - rayiner 11y ago
    The only thing the Supreme Court has done is "interpret" the word "privacy" into a document where it doesn't appear.
    - nitrogen 11y ago
      The word "privacy" doesn't have to occur in the fourth amendment for its meaning to be clear about protecting privacy.
      - themartorana 11y ago
        I imagine if it did, we'd still be having a similar discussion. Without certain events by the court that reset or reaffirm interpretations, Constitutional "wandering" can run amok (see Interstate Commerce Clause and the War on Drugs). District of Columbia v. Heller comes to mind, where the court confirmed a particular reading of the Second Amendment. In 50 years they'll probably have to reaffirm it again. Or they could go a different way... I can easily imagine a bizzaro world where the Fourth Amendment does contain the word privacy, and the court has had to reaffirm or reinterpret what "privacy" means in context over and over. PS - best comment of the night, nitrogen.
      - rayiner 11y ago
        The comment I was responding to implied the Supreme Court "interpreted" the Constitution to undermine privacy rights. But in fact the opposite has happened: it has inserted privacy rights into the document far beyond what is in the text. As to your point: the 4th amendment clearly does protect a narrow form of privacy: freedom from government trespass to property. But look at the text: it's clearly a targeted, specific, protection. In contrast, look at the broad language of the first amendment: freedom of the press, freedom of assembly, freedom of speech. The framers used broad language when that's what they meant. And it's not like private communication is such a novel concept they had no reason to even contemplate it. People tend to think of the cloud and encryption as sui generis but the underlying concepts are not. People in 1776 communicated extensively about sensitive matters by letter and in person. Heck, sometimes they even wrote coded messages! They trusted sensitive business and financial information to accountants, lawyers, merchants, bankers, etc. And if you think about it, if there was some sphere of private communication that the framers intended to protect even from the reach of a warrant, they could have done so even without the existence of encryption! Instead of saying that the government can search your "papers" with a warrant, the 4th amendment could say that the government can never search your papers. Again, it's not like the idea of private communication was novel to them.
- protomyth 11y ago
  I'm not so sure. I keep looking at the states and thinking that it might come to pass. Now, what amendments would get suggested and if they could get approval from 38 states is a different question.
  - AnimalMuppet 11y ago
    You comfort me. I've been hearing about the idea of a constitutional convention, and somewhat concerned about what might get proposed. But if any proposals have to pass 38 states... yeah, I'm quite a bit less concerned now.
    - rpedela 11y ago
      "After being officially proposed, either by Congress or a national convention of the states, a constitutional amendment must then be ratified by the legislatures of, or by ratifying conventions, in at least three-fourths of the states." [1] 1. https://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution https://en.wikipedia.org/wiki/Article_Five_of_the_United_Sta...
    - protomyth 11y ago
      Yeah, there is a lot of FUD on this one. Its really not a constitutional convention but more a gathering that will send proposed amendments back to the state legislatures. It is not a rewrite of the Cobstitution.
      - dragonwriter 11y ago
        Uh, a gathering that sends proposed amendments to state legislatures is a Constitutional convention. (And the first Constitutional convention was gathered to do just that for the Articles of Confederation, it just ended up sending back a recommendation to trash the whole thing and start over. The concern that one called to do draft amendments for the Constitution might do likewise has always been one of the reasons people fear calling one, and have generally preferred running specific amendments through the Congress even when its difficult to calling a convention with direction to address a particular concern.)
- Zigurd 11y ago
  Rights are not enumerated
  - 542458 11y ago
    That's not true. The ninth amendment reads: > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. As such, it would be more accurate to say "Not ALL rights are not enumerated". Some are, some aren't. Those that are have traditionally proven harder to infringe. As such, it's not wrong to explicitly codify a right to privacy in the constitution in order to remove all ambiguity.
    - jakeogh 11y ago
      It is true. The text you cite is pointing out that rights are rights, enumerated or not. Just because some right happens to be enumerated somewhere does not change the fundamental property of rights that they are not something you must enumerate to have.
    - dragonwriter 11y ago
      > As such, it would be more accurate to say "Not ALL rights are not enumerated". It would be even more accurate to say -- as regards the meaning of the Ninth Amendment -- that it means that not all rights applicable against the US federal government are enumerated in the Constitution, in that the omission of legal rights recognized prior to the Constitution are not extinguished by mere omission from the Constitution (they might be extinguished by conflicting with enumerated powers in the Constitution.) I'm not sure its really defensible to interpret the intended meaning of the Ninth Amendment to be that rights exist without being enumerated anywhere. (The closest the Constitution gets to that -- at least, as far as rights that the federal government can't encroach -- is in Amendment X, which does something like that, though its framed in terms of powers rather than rights, by expressly reserving all powers not delegated to the federal government by the Constitution.) Certainly, some of the same people who were involved in advocating for the Ninth Amendment had expressed the view in other contexts that rights exist independent of enumeration (e.g., in the Declaration of Independence.)
rayiner 11y ago
This is some pretty wacky legal argument. Background: > Here, as in those other cases, the government had a search warrant for the device, but it was thwarted by the device’s lock screen in executing the search. > The government cannot impose an unreasonable burden on Apple And the case EFF cites to for that proposition holds: "We conclude, however, that the order issued here [requiring a telephone company to assist the FBI in wiretapping its customers] against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress." > and it cannot violate the Constitution. Sure. But the fact that there's a warrant takes away your biggest Constitutional argument--the 4th amendment. > What’s more, such an order would be unconstitutional. Code is speech, and forcing Apple to push backdoored updates would constitute “compelled speech” in violation of the First Amendment So the government can't force Toyota to push a firmware update to fix faulty electronic throttles? > government keeps pushing for “exceptional access” to encrypted devices and communications. But that's the thing. It's not "exceptional." Since the founding, the compromise is that the government can get at nearly any place that might contain evidence, so long as it has a warrant. Digital privacy proponents are trying to move the goal line, limiting government power in unprecedented ways. Note bene: I support pervasive encryption and oppose back doors.
- zyxley 11y ago
  > It's not "exceptional." The problem here is... well, I'll make an analogy. I have a safe. The government gets a warrant to search that safe, and since I refuse to help, they get a professional locksmith to open the safe for them. Now, let's say I have a safe that the government can't figure out how to open without destroying its contents. In response, the government tells the safe manufacturer to start making different safes that the government can open. Hopefully you see the problem with the second case.
  - jfoutz 11y ago
    Isn't that already covered by spoilage of evidence, or something along those lines? If i have a magic safe that destroys its contents, I'd be on the hook for maybe Obstruction of Justice? That may or may not be better than losing the contents, but it's not like i could just walk away.
razster 11y ago
If I recall you can use a Map Legend to protect yourself, but I cannot recall the case. Some person made a legend to safe guard his password. He was force to hand over his legend but did not have to tell (FBI/CIA) how to decipher it. Anyone know what I'm talking about. Sorry if this is off subject, just thought it might be interesting to look up.
zaroth 11y ago
"As the Ninth Circuit put it in a case interpreting technical assistance in a different context, private companies' obligations to assist the government have “not extended to circumstances in which there is a complete disruption of a service they offer to a customer as part of their business.” It wasn't the case with Lavabit; there is obviously some point at which businesses are expected to properly architect their encryption solutions in order to comply with lawful search warrants. Would have been nice for the article to raise that counter-point and maybe try to address where exactly the line is drawn? The point is Lavabit wasn't an 'All Writs' issue, if you get a search warrant against the company for data held by the company (e.g. the unencrypted iCloud backup) then it's a completely different expectation of compliance. Does this or the WaPo article address if Apple possessed an iCloud backup of the device?
- schoen 11y ago
  > there is obviously some point at which businesses are expected to properly architect their encryption solutions in order to comply with lawful search warrants What do you mean by that? That they aren't allowed to provide end-to-end encryption that they can't decrypt? (I know that's not exactly what Lavabit did.)
- malandrew 11y ago
  At least one big difference is ownership. With lavabit, the company owned the code and infrastructure that was used in a "crime". With an iOS device, Apple has sold the device to an individual who is now responsible for that device. That's a huge difference. The government has been using third-party doctrine as a weak link to exploit to get stuff it wants. Apple essentially removed themselves from the situation so that they are no longer a third-party responsible for the desired data.

124 points by sinak 11y ago

I realize it's basically impossible to pass a constitutional amendment at this point, but guaranteeing the right to privacy would be pretty awesome.

JoshTriplett 11y ago
Part of the trick would be defining privacy in a way that can't be "interpreted" around by the Supreme Court.
- zyxley 11y ago
  Exactly. The Fourth Amendment should already be plenty for this, but a ton of exceptions have been carved out of it, along with the general interpretation that if your data is on someone else's server then no warrant is needed to access it.
  - rayiner 11y ago
    In this case, the government has a warrant to search the device. So what in the 4th amendment "should already be plenty for this?"
    - Pyxl101 11y ago
      The government doesn't have a warrant to force the device manufacturer to add a feature to the phones making them easier to search in the future.
      - rayiner 11y ago
        By its text, the 4th amendment applies to "searches" and "seizures." Requiring a back door is not itself a search or seizure, any more than requiring airbags is one. I oppose requiring backdoors. I might even oppose requiring airbags. But neither is likely unconstitutional.
        zaroth 11y ago
        Then you rely upon the First Amendment, freedom of speech, and prior restraint of speech is strict scrutiny. There is no way a backdoor survives that at the Supreme Court, there is simply too many cases where strong encryption is obviously required for legal use. Speaking privately is the rockbed of free speech. Without privacy of speech, there absolutely never be any thought that speech is free. To try to restrict the privacy of communication is antithetical. Obviously that doesn't mean people wont try to do it 'for the better good' but easily usable strong encryption is reality, just the same as the idea that strong encryption isn't going to stop you from being tracked and monitored. I'm fairly confident that government doesn't need this, and government won't get it. But partly that is confirmation bias because the idea they just might get it is ludicrous to me. It would be as pointless as it is shameful.
        rayiner 11y ago
        Speaking privately was not, historically, the bedrock of free speech. For the entire history of the First Amendment, the government has been able to get access to private speech with a warrant: they could search your person, house, papers and, effects and even compel people you talked to to tell the government what you said. I don't think the government needs encryption backdoors either. But I also don't think they implicate free speech, at least in the First Amendment sense of the concept. That has always focused on protecting public political and artistic expressions, not on making personal communications beyond the reach of law enforcement.
        zaroth 11y ago
        I found 'The Search and Seizure of Private Papers: Fourth and Fifth Amendment Considerations' (1973) [1] a very interesting read, and draw from it heavily in the following... A more updated brief can be found under '' "Dearest Property": Digital Evidence and the History of Private "Papers" as Special Objects of Search and Seizure' (2013) [2] You're right, and I mispoke, it's not a matter of free speech as it is a matter of ensuring the privacy and security of the individual. However I think it's incorrect to say that for the entire history of the United States they could search your person, house, papers and, effects. This is matter for the 4th and 5th not 1st, starting back with Boyd v United States in 1886, and has seen much movement and refinement in the last 40 years particularly; The seizure or compulsory production of a man's private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty or forfeiture, is equally within the prohibition of the Fifth Amendment. Both amendments relate to the personal security of the citizen. They nearly run into, and mutually throw light upon, each other. When the thing forbidden in the Fifth Amendment, namely, compelling a man to be a witness against himself, is the object of a search and seizure of his private papers, it is an "unreasonable search and seizure" within the Fourth Amendment. U.S. Supreme Court Boyd v. United States 116 U.S. 616 (1886) 'Boyd thus created a "zone of privacy that [could] not be invaded by the police through raids, by the legislators through laws, or by magistrates through the issuance of warrants.' (Warden v. Hayden, 387 U.S. 294, 313 (1967)) [T]here are some crimes, such, for instance, as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no paper-search in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem, that search for evidence is disallowed upon the same principle. Then, too the innocent would be confounded with the guilty' -- Entick v. Carrington The sanctity of papers was limited in Gouled in 1921, taken away more fully by Warden in 1967. What was once considered an unwarrantable intrusion into personal privacy, and compulsary self-incrimination, was now considered a reasonable trade-off against personal privacy and sanctioned "after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of 'a neutral and detached magistrate.' In Katz v United States in 1967, In Katz the government introduced evidence of the petitioner's part of a telephone conversation to prove that he had transmitted wagering information by telephone in violation of federal law.87 The Court, while finding the particular search to be invalid since it was not authorized by a warrant, stated: [I]t is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. "However, the utterances at issue in Katz were wagering information and thus would be classified as means and instrumentalities of a crime rather than as mere evidence. 2 Furthermore, Katz did not deal with private papers and thus offers little assistance in determining whether there are circumstances in which private papers should be immune from search and seizure." Diaries, and even private communication, to the extent that they are not instrumentalities and means by which a crime is committed, have long been seen as deserving protection even against seizure with a warrant. "Diaries, for instance, give rise to important privacy interests, are not a substantial means of committing any offense, and need not be seized for the general enforcement of any particular law. Their seizure in whole or part should not be countenanced unless the contents sought to be seized can be described with such particularity that it is clear that privacy interests have already been compromised." 'The positive law has closed its eyes on history. Federal Rule of Criminal Procedure 41 flatly equates “documents, books, papers, any other tangible objects, and information.” The rule plainly contemplates “the seizure of electronic storage media” for “later off-site copying or review.” Today, federal agents may obtain warrants to seize and carry away entire troves of digitally stored private papers and peruse those files at remote locations, one by one. What the leading Whig polemicist denounced as an “abominable outrage,” what the common law condemned as a relic of the Star Chamber, and what no American legislature authorized for the first eighty years of Independence, has become standard law enforcement procedure.' [2] [1] - http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1119&context=llr http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=11... [2] - http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=jclc http://scholarlycommons.law.northwestern.edu/cgi/viewcontent...
    - Zigurd 11y ago
      The government gets the bits. Cryptography is older than computers. A warrant has never guaranteed access to cleartext.
- rayiner 11y ago
  The only thing the Supreme Court has done is "interpret" the word "privacy" into a document where it doesn't appear.
  - nitrogen 11y ago
    The word "privacy" doesn't have to occur in the fourth amendment for its meaning to be clear about protecting privacy.
    - themartorana 11y ago
      I imagine if it did, we'd still be having a similar discussion. Without certain events by the court that reset or reaffirm interpretations, Constitutional "wandering" can run amok (see Interstate Commerce Clause and the War on Drugs). District of Columbia v. Heller comes to mind, where the court confirmed a particular reading of the Second Amendment. In 50 years they'll probably have to reaffirm it again. Or they could go a different way... I can easily imagine a bizzaro world where the Fourth Amendment does contain the word privacy, and the court has had to reaffirm or reinterpret what "privacy" means in context over and over. PS - best comment of the night, nitrogen.
    - rayiner 11y ago
      The comment I was responding to implied the Supreme Court "interpreted" the Constitution to undermine privacy rights. But in fact the opposite has happened: it has inserted privacy rights into the document far beyond what is in the text. As to your point: the 4th amendment clearly does protect a narrow form of privacy: freedom from government trespass to property. But look at the text: it's clearly a targeted, specific, protection. In contrast, look at the broad language of the first amendment: freedom of the press, freedom of assembly, freedom of speech. The framers used broad language when that's what they meant. And it's not like private communication is such a novel concept they had no reason to even contemplate it. People tend to think of the cloud and encryption as sui generis but the underlying concepts are not. People in 1776 communicated extensively about sensitive matters by letter and in person. Heck, sometimes they even wrote coded messages! They trusted sensitive business and financial information to accountants, lawyers, merchants, bankers, etc. And if you think about it, if there was some sphere of private communication that the framers intended to protect even from the reach of a warrant, they could have done so even without the existence of encryption! Instead of saying that the government can search your "papers" with a warrant, the 4th amendment could say that the government can never search your papers. Again, it's not like the idea of private communication was novel to them.
protomyth 11y ago
I'm not so sure. I keep looking at the states and thinking that it might come to pass. Now, what amendments would get suggested and if they could get approval from 38 states is a different question.
- AnimalMuppet 11y ago
  You comfort me. I've been hearing about the idea of a constitutional convention, and somewhat concerned about what might get proposed. But if any proposals have to pass 38 states... yeah, I'm quite a bit less concerned now.
  - rpedela 11y ago
    "After being officially proposed, either by Congress or a national convention of the states, a constitutional amendment must then be ratified by the legislatures of, or by ratifying conventions, in at least three-fourths of the states." [1] 1. https://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution https://en.wikipedia.org/wiki/Article_Five_of_the_United_Sta...
  - protomyth 11y ago
    Yeah, there is a lot of FUD on this one. Its really not a constitutional convention but more a gathering that will send proposed amendments back to the state legislatures. It is not a rewrite of the Cobstitution.
    - dragonwriter 11y ago
      Uh, a gathering that sends proposed amendments to state legislatures is a Constitutional convention. (And the first Constitutional convention was gathered to do just that for the Articles of Confederation, it just ended up sending back a recommendation to trash the whole thing and start over. The concern that one called to do draft amendments for the Constitution might do likewise has always been one of the reasons people fear calling one, and have generally preferred running specific amendments through the Congress even when its difficult to calling a convention with direction to address a particular concern.)
Zigurd 11y ago
Rights are not enumerated
- 542458 11y ago
  That's not true. The ninth amendment reads: > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. As such, it would be more accurate to say "Not ALL rights are not enumerated". Some are, some aren't. Those that are have traditionally proven harder to infringe. As such, it's not wrong to explicitly codify a right to privacy in the constitution in order to remove all ambiguity.
  - jakeogh 11y ago
    It is true. The text you cite is pointing out that rights are rights, enumerated or not. Just because some right happens to be enumerated somewhere does not change the fundamental property of rights that they are not something you must enumerate to have.
  - dragonwriter 11y ago
    > As such, it would be more accurate to say "Not ALL rights are not enumerated". It would be even more accurate to say -- as regards the meaning of the Ninth Amendment -- that it means that not all rights applicable against the US federal government are enumerated in the Constitution, in that the omission of legal rights recognized prior to the Constitution are not extinguished by mere omission from the Constitution (they might be extinguished by conflicting with enumerated powers in the Constitution.) I'm not sure its really defensible to interpret the intended meaning of the Ninth Amendment to be that rights exist without being enumerated anywhere. (The closest the Constitution gets to that -- at least, as far as rights that the federal government can't encroach -- is in Amendment X, which does something like that, though its framed in terms of powers rather than rights, by expressly reserving all powers not delegated to the federal government by the Constitution.) Certainly, some of the same people who were involved in advocating for the Ninth Amendment had expressed the view in other contexts that rights exist independent of enumeration (e.g., in the Declaration of Independence.)

rayiner 11y ago

This is some pretty wacky legal argument. Background: > Here, as in those other cases, the government had a search warrant for the device, but it was thwarted by the device’s lock screen in executing the search. > The government cannot impose an unreasonable burden on Apple And the case EFF cites to for that proposition holds: "We conclude, however, that the order issued here [requiring a telephone company to assist the FBI in wiretapping its customers] against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress." > and it cannot violate the Constitution. Sure. But the fact that there's a warrant takes away your biggest Constitutional argument--the 4th amendment. > What’s more, such an order would be unconstitutional. Code is speech, and forcing Apple to push backdoored updates would constitute “compelled speech” in violation of the First Amendment So the government can't force Toyota to push a firmware update to fix faulty electronic throttles? > government keeps pushing for “exceptional access” to encrypted devices and communications. But that's the thing. It's not "exceptional." Since the founding, the compromise is that the government can get at nearly any place that might contain evidence, so long as it has a warrant. Digital privacy proponents are trying to move the goal line, limiting government power in unprecedented ways. Note bene: I support pervasive encryption and oppose back doors.

zyxley 11y ago
> It's not "exceptional." The problem here is... well, I'll make an analogy. I have a safe. The government gets a warrant to search that safe, and since I refuse to help, they get a professional locksmith to open the safe for them. Now, let's say I have a safe that the government can't figure out how to open without destroying its contents. In response, the government tells the safe manufacturer to start making different safes that the government can open. Hopefully you see the problem with the second case.
- jfoutz 11y ago
  Isn't that already covered by spoilage of evidence, or something along those lines? If i have a magic safe that destroys its contents, I'd be on the hook for maybe Obstruction of Justice? That may or may not be better than losing the contents, but it's not like i could just walk away.

razster 11y ago

If I recall you can use a Map Legend to protect yourself, but I cannot recall the case. Some person made a legend to safe guard his password. He was force to hand over his legend but did not have to tell (FBI/CIA) how to decipher it. Anyone know what I'm talking about. Sorry if this is off subject, just thought it might be interesting to look up.

zaroth 11y ago

"As the Ninth Circuit put it in a case interpreting technical assistance in a different context, private companies' obligations to assist the government have “not extended to circumstances in which there is a complete disruption of a service they offer to a customer as part of their business.” It wasn't the case with Lavabit; there is obviously some point at which businesses are expected to properly architect their encryption solutions in order to comply with lawful search warrants. Would have been nice for the article to raise that counter-point and maybe try to address where exactly the line is drawn? The point is Lavabit wasn't an 'All Writs' issue, if you get a search warrant against the company for data held by the company (e.g. the unencrypted iCloud backup) then it's a completely different expectation of compliance. Does this or the WaPo article address if Apple possessed an iCloud backup of the device?

schoen 11y ago
> there is obviously some point at which businesses are expected to properly architect their encryption solutions in order to comply with lawful search warrants What do you mean by that? That they aren't allowed to provide end-to-end encryption that they can't decrypt? (I know that's not exactly what Lavabit did.)
malandrew 11y ago
At least one big difference is ownership. With lavabit, the company owned the code and infrastructure that was used in a "crime". With an iOS device, Apple has sold the device to an individual who is now responsible for that device. That's a huge difference. The government has been using third-party doctrine as a weak link to exploit to get stuff it wants. Apple essentially removed themselves from the situation so that they are no longer a third-party responsible for the desired data.