4 ms·

This is fundamentally a fight about the autonomy of the human mind, and what the government can command you to do with your own brain. If you and a cohort were

This is fundamentally a fight about the autonomy of the human mind, and what the government can command you to do with your own brain. If you and a cohort were the last survivors of a dying tribe, with your own special language that no one understood, and you criminally conspired with them via written word, the government could not compel you to translate your messages just because they cannot understand them. That's the 5th Amendment in action, as you'd be creating testimony against yourself. The prosecution will have to pin you on some other charge, maybe a crime that you actually physically committed. It's the same exact thing with encryption. It's a language that the government cannot understand, and cannot compel you to translate. Now, to be fair, there is some wishy-washy here because the government desires not only to have compelled decryption, but to force companies to wiretap their own users. The later is not strictly a 5th Amendment violation - but it's the principle of the matter. One day we'll have the ability to interface directly with our minds, and we need to draw the "stay the fuck out" line pretty damned clearly in the sand before that happens.

paggle 7y ago
By "cannot compel you to translate," you mean "must not compel" or "should not compel," because an entity that controls 11 aircraft carriers can compel you to translate whatever the hell they want you to.
- GhettoMaestro 7y ago
  What does 11 carrier strike groups have to do with the 5th amendment? The former is to project power beyond the borders of the United States. The latter is to protect you from an abusive government domestically. Also to take it further, technically, the US Constitution does not apply beyond our borders (like any other US law, absent a bilateral treaty). I fail to see the connection you are trying to make.
  - nullstyle 7y ago
    Not GP, but I think further exploration of the point being made can be found here: https://www.xkcd.com/538/ https://www.xkcd.com/538/ If you prefer to hear similar sentiments from one of saints of comedy: https://youtu.be/gaa9iw85tW8?t=261 https://youtu.be/gaa9iw85tW8?t=261
- nine_k 7y ago
  At worst, they could kill you while trying to compel, but they have no technical means to guarantee them the knowledge of the secret eventually.
ajdlinux 7y ago
> If you and a cohort were the last survivors of a dying tribe, with your own special language that no one understood, and you criminally conspired with them via written word, the government could not compel you to translate your messages just because they cannot understand them. That's the 5th Amendment in action, as you'd be creating testimony against yourself. Ignoring the fact that it seems, uh, unwise to ask a defendant to provide an unverifiable translation of self-incriminating evidence (which is different from most encryption scenarios)... I imagine that if this scenario were actually common and law enforcement was complaining about it, there would be a political debate, much like this one, except including "should we reinterpret or amend the 5th amendment to allow a court to order them to translate it", and a lot of people would agree with them. Now of course many criminals in the past have written down coded notes that have been seized as evidence, but they're often somewhat interpretable or inferences can be drawn from them even if the defendant doesn't cooperate, which is not the same as your hypothetical, or something that's been AES or RSA encrypted. I do take your point about how terrible things are going to get once we have brain-computer interfaces, which is a major reason why I think we shouldn't build them.
- close04 7y ago
  > should we reinterpret That's the problem with these rights: they're always up for interpretation. And the interpretation can be anything a handful of politically appointed people want.
  - ajdlinux 7y ago
    That is also not a solvable problem. Someone's got to do the interpreting, and if your perfect legal system is so perfect as to not permit the occasional reinterpretation as circumstances and opinions change, it'll just collapse in on itself and be replaced by one that does.
snarf21 7y ago
What you say is close but not quite accurate. What you describe is what used to happen before mobile phones, people called each other on pay phones and used coded messages. You had to infiltrate these organizations to catch them. The same solution works today. It is just not as manpower and time efficient as back doors. The reason this is a fight now is because you can target the chain. To use your analogy above: it is more like I know someone in that tribe and I send them a message in english and they translate and pass it along. On the other side is someone in the tribe who translates it back into english for the recipient. The message is never broken in its encoded form, only on the on/off ramps. Pressure can be applied to Apple or WhatsApp to provide access to the data pre/post encoding. This is what the Australia laws demands (and the inability to disclose the back door). The point remains the same, it is only as strong as its weakest link. How can we know that WhatsApp hasn't been patched with a back door? What about the operating system? What about the secure enclave chip itself? The only hope we have here is that companies will say no and/or whistleblowers will speak out.
denton-scratch 7y ago
Well, you know, the 5th Amendment only works in the USA. In most other parts of the world, speech is regulated. I'm not sure whether that is a good thing or a bad thing. I guess it depends on the regulations.

paggle 7y ago

By "cannot compel you to translate," you mean "must not compel" or "should not compel," because an entity that controls 11 aircraft carriers can compel you to translate whatever the hell they want you to.

GhettoMaestro 7y ago
What does 11 carrier strike groups have to do with the 5th amendment? The former is to project power beyond the borders of the United States. The latter is to protect you from an abusive government domestically. Also to take it further, technically, the US Constitution does not apply beyond our borders (like any other US law, absent a bilateral treaty). I fail to see the connection you are trying to make.
- nullstyle 7y ago
  Not GP, but I think further exploration of the point being made can be found here: https://www.xkcd.com/538/ https://www.xkcd.com/538/ If you prefer to hear similar sentiments from one of saints of comedy: https://youtu.be/gaa9iw85tW8?t=261 https://youtu.be/gaa9iw85tW8?t=261
nine_k 7y ago
At worst, they could kill you while trying to compel, but they have no technical means to guarantee them the knowledge of the secret eventually.

ajdlinux 7y ago

> If you and a cohort were the last survivors of a dying tribe, with your own special language that no one understood, and you criminally conspired with them via written word, the government could not compel you to translate your messages just because they cannot understand them. That's the 5th Amendment in action, as you'd be creating testimony against yourself. Ignoring the fact that it seems, uh, unwise to ask a defendant to provide an unverifiable translation of self-incriminating evidence (which is different from most encryption scenarios)... I imagine that if this scenario were actually common and law enforcement was complaining about it, there would be a political debate, much like this one, except including "should we reinterpret or amend the 5th amendment to allow a court to order them to translate it", and a lot of people would agree with them. Now of course many criminals in the past have written down coded notes that have been seized as evidence, but they're often somewhat interpretable or inferences can be drawn from them even if the defendant doesn't cooperate, which is not the same as your hypothetical, or something that's been AES or RSA encrypted. I do take your point about how terrible things are going to get once we have brain-computer interfaces, which is a major reason why I think we shouldn't build them.

close04 7y ago
> should we reinterpret That's the problem with these rights: they're always up for interpretation. And the interpretation can be anything a handful of politically appointed people want.
- ajdlinux 7y ago
  That is also not a solvable problem. Someone's got to do the interpreting, and if your perfect legal system is so perfect as to not permit the occasional reinterpretation as circumstances and opinions change, it'll just collapse in on itself and be replaced by one that does.

snarf21 7y ago

What you say is close but not quite accurate. What you describe is what used to happen before mobile phones, people called each other on pay phones and used coded messages. You had to infiltrate these organizations to catch them. The same solution works today. It is just not as manpower and time efficient as back doors. The reason this is a fight now is because you can target the chain. To use your analogy above: it is more like I know someone in that tribe and I send them a message in english and they translate and pass it along. On the other side is someone in the tribe who translates it back into english for the recipient. The message is never broken in its encoded form, only on the on/off ramps. Pressure can be applied to Apple or WhatsApp to provide access to the data pre/post encoding. This is what the Australia laws demands (and the inability to disclose the back door). The point remains the same, it is only as strong as its weakest link. How can we know that WhatsApp hasn't been patched with a back door? What about the operating system? What about the secure enclave chip itself? The only hope we have here is that companies will say no and/or whistleblowers will speak out.

denton-scratch 7y ago

Well, you know, the 5th Amendment only works in the USA. In most other parts of the world, speech is regulated. I'm not sure whether that is a good thing or a bad thing. I guess it depends on the regulations.