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> 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 p

> 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.)
        filmgirlcw 7y ago
        In Griswold v. Connecticut [1], the Court found the state's law to to be in violation of "right to marital privacy" and deemed right to privacy as right to protection from governmental intrusion. One Justice cited the fifth amendment to get there, another the ninth -- and plenty of legal scholars have argued the ninth amendment basically acts as justification for finding privacy provisions in the Bill of Rights that aren't specifically mentioned in the other eight amendments. You're right that right to privacy is an open question of sorts (especially under the Bill of Rights), but there is nearly a century of case law protecting it in various forms. [1]: https://en.wikipedia.org/wiki/Griswold_v._Connecticut https://en.wikipedia.org/wiki/Griswold_v._Connecticut
- 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

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.)
      - filmgirlcw 7y ago
        In Griswold v. Connecticut [1], the Court found the state's law to to be in violation of "right to marital privacy" and deemed right to privacy as right to protection from governmental intrusion. One Justice cited the fifth amendment to get there, another the ninth -- and plenty of legal scholars have argued the ninth amendment basically acts as justification for finding privacy provisions in the Bill of Rights that aren't specifically mentioned in the other eight amendments. You're right that right to privacy is an open question of sorts (especially under the Bill of Rights), but there is nearly a century of case law protecting it in various forms. [1]: https://en.wikipedia.org/wiki/Griswold_v._Connecticut https://en.wikipedia.org/wiki/Griswold_v._Connecticut
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