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That's an interesting hypothetical for a law school exam, but I don't think any of the Supreme Court would find it very compelling, as it doesn't materially abr
by the_watcher 7y ago
That's an interesting hypothetical for a law school exam, but I don't think any of the Supreme Court would find it very compelling, as it doesn't materially abridge any of those things. People not feeling comfortable with saying things is materially different than actually restricting them from saying them.
EDIT: I wholeheartedly disagree with restricting E2E and believe in freedom of speech as strongly as one can believe in any explicitly enumerated right, I just don't agree the text of the First Amendment covers this, and it's hard for me to imagine any of SCOTUS coming up with an argument supporting it.
- excalibur 7y agoI would argue that freedom of speech includes the freedom to say things that look like absolute gibberish to the surveillance apparatus. Whether they contain a coded message is irrelevant.
- umanwizard 7y agoYou could argue that, but does US constitutional jurisprudence support that argument?
- meowface 7y agoIf US constitutional jurisprudence, in the eyes of our highest officials, supports the argument that corporate money spent politically is speech, then I hope they'd agree that a random-looking sequence of on and off states transmitted through some physical medium with the intention of one or more recipients gleaning meaning from the output is also a kind of speech. I'm definitely not a lawyer, though.
- umanwizard 7y agoI don't understand how the two are related, can you clarify? What does corporate spending on political campaigns have to do with encryption?
- meowface 7y agoI just mean if they use a broad definition of "speech", including a corporation spending money, I subjectively feel like that definition should also encompass sending text or symbols which appear to be random or encrypted. There is no relation between the two other than that I think if money is speech, pure information, in any form, should also be considered protected speech, unless there's a copyright on the information. Similarly, I think things like burning a flag, or sending someone a painting, also should be (and are?) considered speech.
- umanwizard 7y agoYep, my point when asking you to clarify was to see whether you were making this argument: "the Supreme Court will let basically anything crazy count as free speech, so why not this?" It seems like indeed you were. But Citizens United doesn't rely on a broad interpretation of freedom of speech at all. It relies on a broad interpretation of freedom of association. Supporting various political views is "speech" by any possible understanding -- that's not broad at all. The main "innovation" of Citizens United is that when people form associations (like corporations) they retain certain rights, such as freedom of speech. A better analogy would be if we already all agreed that individuals have the right to send encrypted messages, and we were discussing whether corporations retained the same rights. Then you'd have a point, bringing up Citizens United. But when discussing whether people have some underlying right at all, it doesn't seem relevant.
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- the_watcher 7y agoThat would be an excellent argument to make in the issue spotter! That said, restricting E2E at a vendor level probably wouldn't be seen as infringing at the individual level - ie restricting E2E software doesn't restrict the ability to send gibberish containing a coded message any more than restricting an ink that (somehow) doubled as a plastic explosive.
- criddell 7y ago> restricting E2E at a vendor level probably wouldn't be seen as infringing at the individual level Would the Citizens United case apply hear? I'm thinking about corporate personhood arguments.
- the_watcher 7y agoCitizens United did not establish corporate personhood, and is entirely unrelated here.
- 4ntonius8lock 7y agoI love how when you apply basic logic the abuse taking place is shown for what it is. Of course, people will point to X law or precedent and say "see that justifies it'. They don't see how that law should be invalid by the very logic that the state created for itself.
- bb88 7y agoIt might be worth while reading wikipedia on "Chilling Effect". The Supreme Court has already agreed with the gpp some 70 years ago now. https://en.wikipedia.org/wiki/Chilling_effect https://en.wikipedia.org/wiki/Chilling_effect The term chilling effect has been in use in the United States since as early as 1950.[8] The United States Supreme Court first refers to the "chilling effect" in the context of the United States Constitution in Wieman v. Updegraff in 1952.[9]
- the_watcher 7y agoThe Chilling Effect was thoroughly covered in my Constitutional Law class during my year in law school. I understand that this is what any argument for First Amendment protection of E2E would ultimately rely on, but you generally have to actually need to measure or "plainly observe" said effect. Since most people couldn't tell you the difference between end to end encryption and encryption in transit (I can only sort of do it myself), it's really difficult to argue that restricting E2E encryption would actually have a chilling effect.
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- rotrux 7y agoAgree. This is more of a 4th-ammendment "The right of the people to be secure...against unreasonable searches and seizures" issue. It would be like federally outlawing clothes to make sure no one in America has a gun. Also, and aside from the whole premise being unconstitutional, shallow, & generally kind of silly, enforcement would be just about impossible.
- nickpsecurity 7y agoI think it was Schneier's blog that argued or highlighted that it's simultaneously a Fourth and Fifth Amendment issue. On Fourth, they're trying to search through your digital property. At same time, getting your password requires you to speak something that might get you charged for a crime. If it's encrypted messages, those are your speech as well in digital form. Different judges are looking at it in different ways. I say assume they can search it or hold you in contempt for the password if they intercept or find it. Then, you shift the goal post to them not being able to do that.
- swalsh 7y agoIf I was to print out an encrypted message, and publish it in a book, would you agree that the government has a right to ban that book?
- clairity 7y agocoded messages were critical to the revolutionaries and early founders of the US, so it's odd that a constitutionalist would simply ignore that historical precedent, especially interpreting the early amendments that were written at the time.