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But even in the event the government demonstrates probable cause the constitution doesn’t require us to make it as easy as possible for the government to search

But even in the event the government demonstrates probable cause the constitution doesn’t require us to make it as easy as possible for the government to search our homes, papers, and effects. If the police suspect you of murder and get a warrant to dig up your basement you aren’t the one who’s then required to dig. Now imagine the government said no one should be allowed to pour cement in their basement because it makes it difficult to investigate suspected murderers. That’s what Barr is advocating.

tptacek 7y ago
I don't believe the Constitution demands that we make it "easy" for law enforcement to collect evidence, though I'll again note that the animating common law principle comes close: the public is entitled† to every person's evidence. I work closely with cryptography and think about cryptographic freedom mostly the way other people on HN do. I asked a specific question about the Constitution. The debate about whether we should be "allowed" to encrypt things is incredibly boring, we almost certainly don't meaningfully disagree about it, and I'm not interested in having it. † or "has a right to" or "has a claim on", depending on whose paraphrase you're reading
- Legogris 7y ago
  > the public is entitled to every person's evidence. This is w.r.t once it is known to law enforcement and courts. But that's beside the point - I think they person you're replying to is not necessarily disagreeing with you, just extending on what you wrote.
  - tptacek 7y ago
    Can you reconcile that argument with the various rules and statutes proscribing the destruction of evidence?
    - Legogris 7y ago
      I'm not sure I follow. Maybe because I'm not familiar with U.S. rules.
    - technothrasher 7y ago
      How do you reconcile your principle of "every man" as the overarching concept, with the fifth amendment, doctor/patient, lawyer/client, married couples, executive privilege, etc. There are many examples of privileged exceptions to "every man". I don't see how "every man" would ever allow the government to demand a tool maker change their tool for the purposes of future evidence collection when that tool has "privileged" uses. Although I agree with you that the fourth amendment was not made to make it hard to get a warrant, only to restrict warrants to specific, narrow searches with evidenced probable cause.
      - tptacek 7y ago
        We don't have a generally recognized doctor-patient privilege in US federal law. The Fifth Amendment, as I understand it, was added as a protection against torture. Attorney-client privilege, which is much more limited than people think it is (see: current US drama), is fundamental to the working of our legal system, which depends on attorneys to function. All you're really observing here is that we order some principles above the entitlement of the state to evidence. That's certainly true! But nowhere above that entitlement is there a countervailing general right to personal privacy; my understanding of the system we live in is that that right, to the extent it exists, is ordered lower than the state's right to evidence.
        mentat 7y ago
        Thank you, I hadn't realized this. Is there a good source to read up on the evolution of the, at least perception, of a right to privacy?
        tptacek 7y ago
        That is a big question and maybe someone like 'rayiner or 'marcoperaza would be a better person to ask, because I have no legal training. Based on my interested but layperson understanding of the law, my understanding is that it's an open question about the extent to which the Constitution provides a right to privacy. But I do not understand it to be an open question, or at least "as open" a question, about whether the principle of access to evidence is ordered higher than that right to privacy, whatever it may be. (As, just, like, a person shooting the shit on a message board, I should say that of course I value privacy highly, and can think of a number of situations in which I'd order privacy higher than access to evidence! But I can also think of situations where it'd be the other way around. So, for instance: I highly value my right to discuss sensitive political topics privately, without being susceptible to dragnet surveillance trying to find "terrorists" by combing through everyone's messages. But at the same time, I'd like to see Wall Street executives be held more culpable for the harmful decisions they make to abuse their power and access, and those Wall Street execs no doubt feel a strong privacy interests in protecting their discussions about how to, say, price synthetic securities.)
    - CobrastanJorji 7y ago
      The forbidding of destroying evidence does not require one to produce evidence in the first place. Deciding against installing cameras in my house does not mean I'm guilty of destroying evidence.
      - tptacek 7y ago
        I think that's a fair point, but the analogizing goes both ways: yes, your phone is generating a lot of information about you that simply wouldn't have existed in the pre-Internet era, but at the same time a lot of information that would have existed in that earlier era is now inaccessible by default, without any effort on your part. I think the government is on the wrong side of this issue, but I don't think they're making the broad "going dark" concern up. I think technologists need to engage more fully with the law enforcement concerns here rather than dismissing them.
        wh1t3n01s3 7y ago
        There are already a lot a more sources of information today (beside encrypted nessages) than there was in the pre internet era. At that time you simply called from a public phone (for example), even less trackable. Not to mention all the nowadays technology that ease remote tracking of any sort (micro sensors, cameras etc etc). So no, to me it does not go both ways
- microcolonel 7y ago
  I think it's more that they have a right to seek it without interference after the fact. You can not be compelled to disclose the evidence that would be used against you, or any information required to obtain it (and thus constitute a disclosure). If Facebook/WhatsApp's system was built to put them in a position to incriminate you after the fact, then probably the kind of criminal who would use it is the kind you'd convict by other means. That leaves you with the choice of whether or not to incriminate yourself.
  - ethbro 7y ago
    This is definitely the more cogent point, and I expect why the FBI et al. are harping on this point with their PR and legal efforts. In a world where my provider encrypts, the more ironclad self-incrimination protection does not apply. And there are various loopholes to pressure the provider to enable bulk collection. In a world of e2e everywhere, the participants must be targeted, and they have the benefit of the 5th amendment.
  - zaphirplane 7y ago
    Assuming you are talking from a US point of view, https://www.newsweek.com/court-rules-defendant-must-disclose-phone-password-police-prosecution-first-ruling-its-kind-1466112 https://www.newsweek.com/court-rules-defendant-must-disclose... suggests that a person can be completed to provide passwords that unlock incriminating evidence If you are talking globally each country has its laws or no laws on the matter (as you’d expect there are also contradictory court rulings within a country/ state ) https://en.m.wikipedia.org/wiki/Key_disclosure_law https://en.m.wikipedia.org/wiki/Key_disclosure_law
- deleted 7y ago
  [deleted]
- chiefalchemist 7y ago
  It gets interesting when you juxtapose that (the gov having limits) with the First Amendment. That is, within certain limits, you can say whatever you want. Say whatever you want, and the gov can't easily "hear" it. I need to think about this some more.
  - akhosravian 7y ago
    Why is your default position here the government has a right to “hear” anything anyone says? Even with end to end encryption you’d be free to mail a copy of your chats on Facebook messenger to the NSA if you’d like.
    - chiefalchemist 7y ago
      It's no my default. I was simply noting the odd (?) relationship between freedom of speech and pwrsonal privacy (and associated rights).
sjy 7y ago
Are you saying that hypothetical law would be unconstitutional, or just silly?

tptacek 7y ago

I don't believe the Constitution demands that we make it "easy" for law enforcement to collect evidence, though I'll again note that the animating common law principle comes close: the public is entitled† to every person's evidence. I work closely with cryptography and think about cryptographic freedom mostly the way other people on HN do. I asked a specific question about the Constitution. The debate about whether we should be "allowed" to encrypt things is incredibly boring, we almost certainly don't meaningfully disagree about it, and I'm not interested in having it. † or "has a right to" or "has a claim on", depending on whose paraphrase you're reading

Legogris 7y ago
> the public is entitled to every person's evidence. This is w.r.t once it is known to law enforcement and courts. But that's beside the point - I think they person you're replying to is not necessarily disagreeing with you, just extending on what you wrote.
- tptacek 7y ago
  Can you reconcile that argument with the various rules and statutes proscribing the destruction of evidence?
  - Legogris 7y ago
    I'm not sure I follow. Maybe because I'm not familiar with U.S. rules.
  - technothrasher 7y ago
    How do you reconcile your principle of "every man" as the overarching concept, with the fifth amendment, doctor/patient, lawyer/client, married couples, executive privilege, etc. There are many examples of privileged exceptions to "every man". I don't see how "every man" would ever allow the government to demand a tool maker change their tool for the purposes of future evidence collection when that tool has "privileged" uses. Although I agree with you that the fourth amendment was not made to make it hard to get a warrant, only to restrict warrants to specific, narrow searches with evidenced probable cause.
    - tptacek 7y ago
      We don't have a generally recognized doctor-patient privilege in US federal law. The Fifth Amendment, as I understand it, was added as a protection against torture. Attorney-client privilege, which is much more limited than people think it is (see: current US drama), is fundamental to the working of our legal system, which depends on attorneys to function. All you're really observing here is that we order some principles above the entitlement of the state to evidence. That's certainly true! But nowhere above that entitlement is there a countervailing general right to personal privacy; my understanding of the system we live in is that that right, to the extent it exists, is ordered lower than the state's right to evidence.
      - mentat 7y ago
        Thank you, I hadn't realized this. Is there a good source to read up on the evolution of the, at least perception, of a right to privacy?
        tptacek 7y ago
        That is a big question and maybe someone like 'rayiner or 'marcoperaza would be a better person to ask, because I have no legal training. Based on my interested but layperson understanding of the law, my understanding is that it's an open question about the extent to which the Constitution provides a right to privacy. But I do not understand it to be an open question, or at least "as open" a question, about whether the principle of access to evidence is ordered higher than that right to privacy, whatever it may be. (As, just, like, a person shooting the shit on a message board, I should say that of course I value privacy highly, and can think of a number of situations in which I'd order privacy higher than access to evidence! But I can also think of situations where it'd be the other way around. So, for instance: I highly value my right to discuss sensitive political topics privately, without being susceptible to dragnet surveillance trying to find "terrorists" by combing through everyone's messages. But at the same time, I'd like to see Wall Street executives be held more culpable for the harmful decisions they make to abuse their power and access, and those Wall Street execs no doubt feel a strong privacy interests in protecting their discussions about how to, say, price synthetic securities.)
  - CobrastanJorji 7y ago
    The forbidding of destroying evidence does not require one to produce evidence in the first place. Deciding against installing cameras in my house does not mean I'm guilty of destroying evidence.
    - tptacek 7y ago
      I think that's a fair point, but the analogizing goes both ways: yes, your phone is generating a lot of information about you that simply wouldn't have existed in the pre-Internet era, but at the same time a lot of information that would have existed in that earlier era is now inaccessible by default, without any effort on your part. I think the government is on the wrong side of this issue, but I don't think they're making the broad "going dark" concern up. I think technologists need to engage more fully with the law enforcement concerns here rather than dismissing them.
      - wh1t3n01s3 7y ago
        There are already a lot a more sources of information today (beside encrypted nessages) than there was in the pre internet era. At that time you simply called from a public phone (for example), even less trackable. Not to mention all the nowadays technology that ease remote tracking of any sort (micro sensors, cameras etc etc). So no, to me it does not go both ways
microcolonel 7y ago
I think it's more that they have a right to seek it without interference after the fact. You can not be compelled to disclose the evidence that would be used against you, or any information required to obtain it (and thus constitute a disclosure). If Facebook/WhatsApp's system was built to put them in a position to incriminate you after the fact, then probably the kind of criminal who would use it is the kind you'd convict by other means. That leaves you with the choice of whether or not to incriminate yourself.
- ethbro 7y ago
  This is definitely the more cogent point, and I expect why the FBI et al. are harping on this point with their PR and legal efforts. In a world where my provider encrypts, the more ironclad self-incrimination protection does not apply. And there are various loopholes to pressure the provider to enable bulk collection. In a world of e2e everywhere, the participants must be targeted, and they have the benefit of the 5th amendment.
- zaphirplane 7y ago
  Assuming you are talking from a US point of view, https://www.newsweek.com/court-rules-defendant-must-disclose-phone-password-police-prosecution-first-ruling-its-kind-1466112 https://www.newsweek.com/court-rules-defendant-must-disclose... suggests that a person can be completed to provide passwords that unlock incriminating evidence If you are talking globally each country has its laws or no laws on the matter (as you’d expect there are also contradictory court rulings within a country/ state ) https://en.m.wikipedia.org/wiki/Key_disclosure_law https://en.m.wikipedia.org/wiki/Key_disclosure_law
deleted 7y ago
[deleted]
chiefalchemist 7y ago
It gets interesting when you juxtapose that (the gov having limits) with the First Amendment. That is, within certain limits, you can say whatever you want. Say whatever you want, and the gov can't easily "hear" it. I need to think about this some more.
- akhosravian 7y ago
  Why is your default position here the government has a right to “hear” anything anyone says? Even with end to end encryption you’d be free to mail a copy of your chats on Facebook messenger to the NSA if you’d like.
  - chiefalchemist 7y ago
    It's no my default. I was simply noting the odd (?) relationship between freedom of speech and pwrsonal privacy (and associated rights).

sjy 7y ago

Are you saying that hypothetical law would be unconstitutional, or just silly?