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The EARN IT Act Violates the US Constitution

644 points by notRobot 7y ago

doggodad 7y ago
The fruits of neoliberal inverted totalitarianism.
nikanj 7y ago
Would a republican-heavy Supreme Court agree?
- SamReidHughes 7y ago
  If the ruling voting to overturn on these grounds were 6-3 I'd guess it was 4 repubs, plus Soto and RGB. If it were 8-1 I'd guess it was 4 repubs + 4 dems, with Thomas dissenting. Edit: Well, nah, it'd be some breakdown with concurrences in part.
  - rudiv 7y ago
    Haha, RGB. 'The Notorious RGB' sounds like something people in the printing industry say.
  - henriquez 7y ago
    RGB: the Corsair gaming justice!
  - bryanrasmussen 7y ago
    I put a hex on you Notorious Ruth Ginsburg Bader!
- wyxuan 7y ago
  idk. It might be less about republican policy and more about republican ideals (less government action) that gets this overturned. I would at the very least expect Roberts to maybe jump the aisle.
- henriquez 7y ago
  Allowing the Office of the Attorney General wide discretion to regulate speech seems like it wouldn’t square up with “smaller government” ideals favored by a Republican Supreme Court, especially when the AG could be a Democrat in less than a year.
  - nindalf 7y ago
    I think "small government" principles can be set aside when it's expedient to do so. See how small government advocates at the Federal level try their best to override state laws on marijuana legalisation - such businesses still have difficulties getting a bank account. Reagan, the arch-priest of the small government cult did it too. He bullied states into changing the minimum drinking age by withholding Federal funding.
    - throwaway0a5e 7y ago
      I think you're confusing people who want small government with Republicans in general and people who just care about low taxes (or intentionally building a straw-man but I'll give you benefit of the doubt). Small government advocates do not remember Reagan fondly because of his drug policy and how he screwed the second amendment. Small government advocates haven't been a fan of federal drug policy for a very long time. I remember seeing bumper stickers with quips like "I dream of a world where men can smoke pot with their husbands" in the early 1990s.
      - non-entity 7y ago
        > I think you're confusing people who want small government with Republicans in general and people who just care about low taxes (or intentionally building a straw-man but I'll give you benefit of the doubt). That would be in-part because those two groups you mention like to advertise themselves are proponents of small government, when most often they are not. Hell I'd even wager many libertarians are less small-government than they claim and I've even heard many of them complain about too many Republican-lite types associating themselves.
      - Infinitesimus 7y ago
zerocrates 7y ago
It's the EFF's job to advocate for a strong position on this kind of stuff, but it's a little hard to square those strong 4th Amendment claims with the existence of the third party doctrine.
- klyrs 7y ago
  The third party doctrine applies to voluntary disclosure, whereas this law compels it.
  - cyphar 7y ago
    No, the third party doctrine allows for compelled disclosure (through warrants) of a user's data which the service acted as a carrier for. That's why law enforcement can send warrants to Google (or your ISP) to get the contents of your email account, rather than having to serve you a warrant. The part that is often cited as being "voluntary" is that you decided to volunteer your information to a third-party (even if the service requires you to do so, and thus you actually had no meaningful choice in the matter) and thus you have "no reasonable expectation of privacy".
- ncallaway 7y ago
  Let's say a service builds a system with end-to-end encryption, such that the service provider itself is unable to decrypt and read any messages sent using the service. How would the third party doctrine apply to that scenario? I haven't voluntarily given any decrypted information to the service provider. Instead, I specifically avoided voluntarily giving them that information. So, at least in the context that the EARN IT act may threaten end-to-end encryption (or may attach significant civil liability to adopting end-to-end encryption) I'm not sure I understand how the third party doctrine applies. Can you expand on that?
  - zerocrates 7y ago
    The trouble is that the argument isn't that pressuring providers to eliminate end to end encryption itself violates the 4th Amendment, but that, in the new scheme required under EARN IT, that when a provider does scan your information, that will violate the 4th Amendment. So at the time this argument applies, you have provided them readable information and the doctrine would apply. To be fairer to EFF in the light of the morning, their argument actually does account for the third-party doctrine: it instead rests on the theory that courts would find EARN IT so coercive that the service providers should be effectively treated as an arm of the state. I take a pretty dim view of the likelihood of such an argument's success, but it's a game attempt. The 1st Amendment case is probably stronger, especially given the tendency toward maximalism in that area by the Supreme Court lately... but I wouldn't call it very strong. Defeating this politically is a much better bet.
nimbius 7y ago
Im with most of the tenets of the post, however its worth noting the US Government and its member states tend to generally ignore the fourth amendment unless you've got the cash to file a lawsuit. https://arstechnica.com/tech-policy/2020/02/removing-a-gps-tracking-device-from-your-car-isnt-theft-court-rules/ https://arstechnica.com/tech-policy/2020/02/removing-a-gps-t... https://www.washingtonexaminer.com/michael-bloombergs-stop-and-frisk-violates-the-fourth-amendment https://www.washingtonexaminer.com/michael-bloombergs-stop-a... https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception https://reason.com/2019/09/10/the-supreme-courts-next-big-fourth-amendment-case/ https://reason.com/2019/09/10/the-supreme-courts-next-big-fo... and lets not forget, the star of the 21st century... https://www.aclu.org/blog/national-security/privacy-and-surveillance/nsa-continues-violate-americans-internet-privacy https://www.aclu.org/blog/national-security/privacy-and-surv...
- zeveb 7y ago
  And of course there's also Wickard v. Filburn, which held that feeding cattle in one state grain raised in the same state is somehow interstate commerce, and Baker v. Carr, Gray v. Sanders & Reynolds v. Sims which combined prevent states from having a republican form of government patterned after the federal model. And there are the drug laws, which are mostly although not entirely unconstitutional. And then there are the many state and local firearms laws which violate the Second Amendment. And there's Maryland v. Craig, which guts the right to confront one's accusers. And then there are all the executive departments with no authorisation in the Constitution (e.g. the Department of Education), which IMHO violate the Ninth Amendment. Sadly, it has been a long, long time since 'this should not be done because it violates the Constitution' has been persuasive. The Constitution's not perfect, but it's better than what we have now.
  - alexmingoia 7y ago
    Also almost all immigration restrictions like work and residency visas are unconstitutional, as the constitution only grants the Federal government power to determine rules for naturalization. To quote Justice William Rehnquist: “one of the greatest 'fictions' of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to 'regulate Commerce ... among the several States' (Commerce Clause), one could easily get the sense from this Court's opinions that the federal system exists only at the sufferance of Congress."
tphyahoo 7y ago
Dear Thomas: Thank you for writing to me to share your concerns about law enforcement access to encrypted communications. I appreciate the time you took to write, and I welcome the opportunity to respond. I understand you are opposed to the “Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2020” (S. 3398), which I introduced with Senators Lindsey Graham (R-SC), Richard Blumenthal (D-CT), and Josh Hawley (R-MO) on March 5, 2020. You may be interested to know that the Senate Judiciary Committee—of which I am Ranking Member—held a hearing on the “EARN IT Act” on March 11, 2020. If you would like to watch the full hearing or read the testimonies given by the hearing witnesses, I encourage you to visit the following website: https://sen.gov/53RV https://sen.gov/53RV. The “EARN IT Act” would establish a National Commission on Online Sexual Exploitation Prevention to recommend best practices for companies to identify and report child sexual abuse material. Companies that implement these, or substantially similar, best practices would not be liable for any child sexual abuse materials that may still be found on their platforms. Companies that fail to meet these requirements, or fail to take other reasonable measures, would lose their liability protection. Child abuse is one of the most heinous crimes, which is why I was deeply disturbed by recent reporting by The New York Times about the nearly 70 million online photos and videos of child sexual abuse that were reported by technology companies last year. It is a federal crime to possesses, distribute, or produce pictures of sexually explicit conduct with minors, and technology companies are required to report and remove these images on their platforms. Media reports, however, make it clear that current federal enforcement measures are insufficient and that we must do more to protect children from sexual exploitation. Please know that I believe we must strike an appropriate balance between personal privacy and public safety. It is helpful for me to hear your perspective on this issue, and I will be mindful of your opposition to the “EARN IT Act” as the Senate continues to debate proposals to address child sexual exploitation. Once again, thank you for writing. Should you have any other questions or comments, please call my Washington, D.C. office at (202) 224-3841 or visit my website at feinstein.senate.gov. You can also follow me online at YouTube, Facebook and Twitter, and you can sign up for my email newsletter at feinstein.senate.gov/newsletter. Best regards. Sincerely yours, Dianne Feinstein United States Senator
tphyahoo2 7y ago
Dear Thomas: Thank you for writing to me to share your concerns about law enforcement access to encrypted communications. I appreciate the time you took to write, and I welcome the opportunity to respond. I understand you are opposed to the “Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2020” (S. 3398), which I introduced with Senators Lindsey Graham (R-SC), Richard Blumenthal (D-CT), and Josh Hawley (R-MO) on March 5, 2020. You may be interested to know that the Senate Judiciary Committee—of which I am Ranking Member—held a hearing on the “EARN IT Act” on March 11, 2020. If you would like to watch the full hearing or read the testimonies given by the hearing witnesses, I encourage you to visit the following website: https://sen.gov/53RV https://sen.gov/53RV. The “EARN IT Act” would establish a National Commission on Online Sexual Exploitation Prevention to recommend best practices for companies to identify and report child sexual abuse material. Companies that implement these, or substantially similar, best practices would not be liable for any child sexual abuse materials that may still be found on their platforms. Companies that fail to meet these requirements, or fail to take other reasonable measures, would lose their liability protection. Child abuse is one of the most heinous crimes, which is why I was deeply disturbed by recent reporting by The New York Times about the nearly 70 million online photos and videos of child sexual abuse that were reported by technology companies last year. It is a federal crime to possesses, distribute, or produce pictures of sexually explicit conduct with minors, and technology companies are required to report and remove these images on their platforms. Media reports, however, make it clear that current federal enforcement measures are insufficient and that we must do more to protect children from sexual exploitation. Please know that I believe we must strike an appropriate balance between personal privacy and public safety. It is helpful for me to hear your perspective on this issue, and I will be mindful of your opposition to the “EARN IT Act” as the Senate continues to debate proposals to address child sexual exploitation. Once again, thank you for writing. Should you have any other questions or comments, please call my Washington, D.C. office at (202) 224-3841 or visit my website at feinstein.senate.gov. You can also follow me online at YouTube, Facebook and Twitter, and you can sign up for my email newsletter at feinstein.senate.gov/newsletter. Best regards. Sincerely yours, Dianne Feinstein United States Senator
- ibeckermayer 7y ago
CriticalCathed 7y ago
So do a lot of things our government does. I am glad that my monthly donation to the EFF at the very least is being used to push back.
LatteLazy 7y ago
So what? If the supreme Court refuse to heard the case, like they have with the Patriot Act and pretty much every similar case since Sept 11th, nothing will stop it.
cyphar 7y ago
It's strange to me that technology workers are seemingly unwilling to unionise and hold general strikes to protest these kinds of policies -- if we aren't willing to take real collective action, we aren't ever going to have our voices heard. When Australia passed an even more ludicrous anti-encryption bill a year ago, the only real response by the technology community was a handful of blog posts (after it was too late to do anything about the legislation[+]) and grand-standing on twitter. Why are we so shocked when politicians don't listen to us? We act like petulant children -- small bursts of outrage, but with no consequences for the people in power. [+]: Most posts were published either a day or two before it passed through the House of Reps, and some were posted during the day of the Senate discussion and passage. I did submit comments during the comment period, but we all know that had zero effect on their decisions.
- _red 7y ago
  > the only real response by the technology community was a handful of blog posts Something that is rarely talked about anymore but true is that the original 'internet culture' from the early 90s is basically dead. The ethos of that age was an active distrust of government and centralized authority. Further, there was a lack of trust in politics in general. That's basically gone now. The new technologist are not just unprincipled, they are deeply political and will support whatever initiative their tribe is pursuing. Even more cynical, is how can they even be against 'spying' and 'privacy violations'? 90% of the jobs available involve doing just that. There is no way to have a world both against the EARN IT act and yet work for FB, Google, etc - they are basically all part of the same spyware industry.
  - deleted 7y ago
    [deleted]
  - icedchai 7y ago
    That age died when the general public started coming online. That was the time when people self hosted their own email and web servers. Nobody has time for that anymore. Sadly, centralization is simpler. And privacy was an illusion anyway.
  - 7y ago
duncan_bayne 7y ago
It's funny (to me) that people are surprised that Feinstein is so willing to trample over Constitutional protections while blithely ignoring the objections of the citizens she (in theory) represents. For years, this has been her approach to the 2nd amendment, and to be honest, most geeks have either remained silent, or applauded her actions. Now she's coming for the 4th amendment, and geeks are up in arms (humour intentional).
- AdrianB1 7y ago
  Many people believe the second amendment is wrong and it does not require protection, but they still care about the 4th. The only thing I always think about when I see this: https://en.wikipedia.org/wiki/First_they_came_.. https://en.wikipedia.org/wiki/First_they_came_...
  - tialaramex 7y ago
    The Second Amendment was probably a bad idea when it was written. Its proponents made a bunch of assumptions that look laughable in hindsight. Today in the hands of a Supreme Court increasingly disconnected from reality it's interpreted as an excuse to let people who clearly shouldn't have guns at all have as many guns as they can buy. "First they came..." is about people not about ice cream flavors, or video games or constitutional amendments. Changing laws is a normal function of society. It is an anomaly (and a grave defect) that the US has become unable to even think of changing these particular laws, to the point where many of its people enshrine them as holy principles rather than recognising they are just laws of men. It has been forever since America had judges brave enough to argue that something can't be lawful because it is evil, and so the EFF is obliged to frame things as "unconstitutional" instead. In a way that's America's legacy, the observation that slavery was evil pre-dates its founding as a country built on slavery, so it has always been necessary to its function to pretend that it's somehow important to allow evil if it's legal. In such an environment any potential judge with strong moral character could only be discouraged.
    - david_w 7y ago
      How do you propose the People should resist a despotic government. Supposing, as we must, the government literally becomes tyrannical, how do propose people resist it at that point? That is the whole reason we have a 2nd Amendment. That's what it's about. We went in with everything to Iraq and Afghanistan and did we subdue them? No. Why not? Because they had guns, and with guns, they acquired further weaponery to fight us; No other reason. So you remove all the guns from "people who shouldn't have them" and how do you propose people should resist a tyrannical government? Serious question, I am not mocking you.
deleted 7y ago
[deleted]
david_w 7y ago
Like the EFF cares about free speech. Like they have showed up even once to campuses across the nation to defend the Constitutional rights of their ideological opponents. Everyone knows the EFF and the ACLU are thinly camoflaged shells of their former selves, tactically pushing for whatever will advance their quest for power. Yeah, we know that if we want help defending our Constitutional rights, we go to non-psychopathic organzations like FIRE and Judical Watch and Project Veritas. They defend strong encryption because it's a tool their side still needs, for now. Defending the Constitution and free speech is just a temporary tactic for them until they get more power, the sort of power they now wield openly on campuses across this nation and which you use to silence anyone who disagrees with them. After that, they'll start talking about how old the Constitution is, how its from another, quainter time, and how it needs now to be put aside.... and how important it is the government oversee people's speech lest someone utter hatespeak .....and consequently we must ban strong encryption. Or, in their own words: https://www.eff.org/pages/speaking-freely-sandra-ordonez https://www.eff.org/pages/speaking-freely-sandra-ordonez
- AdrianB1 7y ago
  That link: good catch, I had no idea.
- up_o 7y ago
  lol
- uk_programmer 7y ago
  > "Hate Speech is not Free Speech". Yes this old chestnut. This has been used to trample over our rights in the UK.
- KarlKemp 7y ago
  The EFF didn’t change. You just went off the deep end. They don’t care about your pet issue of alt-right 4chan stars not getting rooms at universities because there just is no right to get meeting space at public universities. (And what a surprise that what bothers you most is the EFF supporting a woman)
stevespang 7y ago
End to end encryption products obtained offshore with the 2nd amendment handily lying nearby is the only way forward.
emilecantin 7y ago
I like to see legislation as similar to computer code, where the "computer" is society & the courts. There are a lot of parallels: the actual laws that are passed often look like diffs explained with words (insert this word here, remove this sentence, etc), every concept has to be explicitely defined, and you have to think of all the corner-cases otherwise you get unforeseen consequences, etc. Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it. The fact that most legislators are actually terrible coders doesn't help at all either.
- gerikson 7y ago
  > Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it. That's because law professionals make a very good living by dealing with the technical debt - a bit like the worst kinds of IT consultants.
- jacques_chester 7y ago
  This analogy is commonly drawn by programmers. Like many analogies it's imperfect. Law in the Common Law countries (the UK, US, Australia, Canada, NZ etc) has two main sources: case law and legislation. They are both the law. Case law derives its power from precedent, legislation from declaration. But they are both the law. Legislation read in isolation will not give you a correct understanding of the law. More specifically: > Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it. Reform acts are passed all the time, often consolidating caselaw, or consolidating legislation, or both. Just as often there's a process of cleaning up the attic and finding old legislation that needs to be repealed. Where I studied law, the Law of Property Act 2000 (NT) included repeals for Acts going back as far as 1266[0]. But a legislature has limited bandwidth. Within this bandwidth there is a fat tail distribution of attention. Contentious issues frequently absorb legislative time and effort out of proportion to their size or complexity. This is not a matter of legislation-as-code, this is a matter of the economics of public choice and bargaining. > The fact that most legislators are actually terrible coders doesn't help at all either. Legislation is typically drafted by professional drafters working for the legislature. Some comes from "model acts" provided by lobbyists, these too drafted by professionals. Drafting legislation is as hard or harder than coding. There are no debugging tools, no test suites, everything is done live in production with potentially unlimited consequences. Those drafters work with immense care and often under absurd deadlines. [0] http://classic.austlii.edu.au/au/legis/nt/consol_act/lopa2000198/sch4.html http://classic.austlii.edu.au/au/legis/nt/consol_act/lopa200...
fmakunbound 7y ago
It's amazing what you can get done in the name of saving the children.
- snarf21 7y ago
  Fear-mongering is strong. Look at all the freedoms we lost after 9/11. Pedophiles and terrorists and porn are always the scapegoats.
frankzen 7y ago
What is it about weak encryption that has these politicians convinced that using it won't lead to higher incidents of hacking and identity theft? We're already dealing with one blow to our economy, should we bracing for a second?

644 points by notRobot 7y ago

doggodad 7y ago

The fruits of neoliberal inverted totalitarianism.

nikanj 7y ago

Would a republican-heavy Supreme Court agree?

SamReidHughes 7y ago
If the ruling voting to overturn on these grounds were 6-3 I'd guess it was 4 repubs, plus Soto and RGB. If it were 8-1 I'd guess it was 4 repubs + 4 dems, with Thomas dissenting. Edit: Well, nah, it'd be some breakdown with concurrences in part.
- rudiv 7y ago
  Haha, RGB. 'The Notorious RGB' sounds like something people in the printing industry say.
- henriquez 7y ago
  RGB: the Corsair gaming justice!
- bryanrasmussen 7y ago
  I put a hex on you Notorious Ruth Ginsburg Bader!
wyxuan 7y ago
idk. It might be less about republican policy and more about republican ideals (less government action) that gets this overturned. I would at the very least expect Roberts to maybe jump the aisle.
henriquez 7y ago
Allowing the Office of the Attorney General wide discretion to regulate speech seems like it wouldn’t square up with “smaller government” ideals favored by a Republican Supreme Court, especially when the AG could be a Democrat in less than a year.
- nindalf 7y ago
  I think "small government" principles can be set aside when it's expedient to do so. See how small government advocates at the Federal level try their best to override state laws on marijuana legalisation - such businesses still have difficulties getting a bank account. Reagan, the arch-priest of the small government cult did it too. He bullied states into changing the minimum drinking age by withholding Federal funding.
  - throwaway0a5e 7y ago
    I think you're confusing people who want small government with Republicans in general and people who just care about low taxes (or intentionally building a straw-man but I'll give you benefit of the doubt). Small government advocates do not remember Reagan fondly because of his drug policy and how he screwed the second amendment. Small government advocates haven't been a fan of federal drug policy for a very long time. I remember seeing bumper stickers with quips like "I dream of a world where men can smoke pot with their husbands" in the early 1990s.
    - non-entity 7y ago
      > I think you're confusing people who want small government with Republicans in general and people who just care about low taxes (or intentionally building a straw-man but I'll give you benefit of the doubt). That would be in-part because those two groups you mention like to advertise themselves are proponents of small government, when most often they are not. Hell I'd even wager many libertarians are less small-government than they claim and I've even heard many of them complain about too many Republican-lite types associating themselves.
    - Infinitesimus 7y ago

zerocrates 7y ago

It's the EFF's job to advocate for a strong position on this kind of stuff, but it's a little hard to square those strong 4th Amendment claims with the existence of the third party doctrine.

klyrs 7y ago
The third party doctrine applies to voluntary disclosure, whereas this law compels it.
- cyphar 7y ago
  No, the third party doctrine allows for compelled disclosure (through warrants) of a user's data which the service acted as a carrier for. That's why law enforcement can send warrants to Google (or your ISP) to get the contents of your email account, rather than having to serve you a warrant. The part that is often cited as being "voluntary" is that you decided to volunteer your information to a third-party (even if the service requires you to do so, and thus you actually had no meaningful choice in the matter) and thus you have "no reasonable expectation of privacy".
ncallaway 7y ago
Let's say a service builds a system with end-to-end encryption, such that the service provider itself is unable to decrypt and read any messages sent using the service. How would the third party doctrine apply to that scenario? I haven't voluntarily given any decrypted information to the service provider. Instead, I specifically avoided voluntarily giving them that information. So, at least in the context that the EARN IT act may threaten end-to-end encryption (or may attach significant civil liability to adopting end-to-end encryption) I'm not sure I understand how the third party doctrine applies. Can you expand on that?
- zerocrates 7y ago
  The trouble is that the argument isn't that pressuring providers to eliminate end to end encryption itself violates the 4th Amendment, but that, in the new scheme required under EARN IT, that when a provider does scan your information, that will violate the 4th Amendment. So at the time this argument applies, you have provided them readable information and the doctrine would apply. To be fairer to EFF in the light of the morning, their argument actually does account for the third-party doctrine: it instead rests on the theory that courts would find EARN IT so coercive that the service providers should be effectively treated as an arm of the state. I take a pretty dim view of the likelihood of such an argument's success, but it's a game attempt. The 1st Amendment case is probably stronger, especially given the tendency toward maximalism in that area by the Supreme Court lately... but I wouldn't call it very strong. Defeating this politically is a much better bet.

nimbius 7y ago

Im with most of the tenets of the post, however its worth noting the US Government and its member states tend to generally ignore the fourth amendment unless you've got the cash to file a lawsuit. https://arstechnica.com/tech-policy/2020/02/removing-a-gps-tracking-device-from-your-car-isnt-theft-court-rules/ https://arstechnica.com/tech-policy/2020/02/removing-a-gps-t... https://www.washingtonexaminer.com/michael-bloombergs-stop-and-frisk-violates-the-fourth-amendment https://www.washingtonexaminer.com/michael-bloombergs-stop-a... https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception https://reason.com/2019/09/10/the-supreme-courts-next-big-fourth-amendment-case/ https://reason.com/2019/09/10/the-supreme-courts-next-big-fo... and lets not forget, the star of the 21st century... https://www.aclu.org/blog/national-security/privacy-and-surveillance/nsa-continues-violate-americans-internet-privacy https://www.aclu.org/blog/national-security/privacy-and-surv...

zeveb 7y ago
And of course there's also Wickard v. Filburn, which held that feeding cattle in one state grain raised in the same state is somehow interstate commerce, and Baker v. Carr, Gray v. Sanders & Reynolds v. Sims which combined prevent states from having a republican form of government patterned after the federal model. And there are the drug laws, which are mostly although not entirely unconstitutional. And then there are the many state and local firearms laws which violate the Second Amendment. And there's Maryland v. Craig, which guts the right to confront one's accusers. And then there are all the executive departments with no authorisation in the Constitution (e.g. the Department of Education), which IMHO violate the Ninth Amendment. Sadly, it has been a long, long time since 'this should not be done because it violates the Constitution' has been persuasive. The Constitution's not perfect, but it's better than what we have now.
- alexmingoia 7y ago
  Also almost all immigration restrictions like work and residency visas are unconstitutional, as the constitution only grants the Federal government power to determine rules for naturalization. To quote Justice William Rehnquist: “one of the greatest 'fictions' of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to 'regulate Commerce ... among the several States' (Commerce Clause), one could easily get the sense from this Court's opinions that the federal system exists only at the sufferance of Congress."

tphyahoo 7y ago

Dear Thomas: Thank you for writing to me to share your concerns about law enforcement access to encrypted communications. I appreciate the time you took to write, and I welcome the opportunity to respond. I understand you are opposed to the “Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2020” (S. 3398), which I introduced with Senators Lindsey Graham (R-SC), Richard Blumenthal (D-CT), and Josh Hawley (R-MO) on March 5, 2020. You may be interested to know that the Senate Judiciary Committee—of which I am Ranking Member—held a hearing on the “EARN IT Act” on March 11, 2020. If you would like to watch the full hearing or read the testimonies given by the hearing witnesses, I encourage you to visit the following website: https://sen.gov/53RV https://sen.gov/53RV. The “EARN IT Act” would establish a National Commission on Online Sexual Exploitation Prevention to recommend best practices for companies to identify and report child sexual abuse material. Companies that implement these, or substantially similar, best practices would not be liable for any child sexual abuse materials that may still be found on their platforms. Companies that fail to meet these requirements, or fail to take other reasonable measures, would lose their liability protection. Child abuse is one of the most heinous crimes, which is why I was deeply disturbed by recent reporting by The New York Times about the nearly 70 million online photos and videos of child sexual abuse that were reported by technology companies last year. It is a federal crime to possesses, distribute, or produce pictures of sexually explicit conduct with minors, and technology companies are required to report and remove these images on their platforms. Media reports, however, make it clear that current federal enforcement measures are insufficient and that we must do more to protect children from sexual exploitation. Please know that I believe we must strike an appropriate balance between personal privacy and public safety. It is helpful for me to hear your perspective on this issue, and I will be mindful of your opposition to the “EARN IT Act” as the Senate continues to debate proposals to address child sexual exploitation. Once again, thank you for writing. Should you have any other questions or comments, please call my Washington, D.C. office at (202) 224-3841 or visit my website at feinstein.senate.gov. You can also follow me online at YouTube, Facebook and Twitter, and you can sign up for my email newsletter at feinstein.senate.gov/newsletter. Best regards. Sincerely yours, Dianne Feinstein United States Senator

tphyahoo2 7y ago

ibeckermayer 7y ago

CriticalCathed 7y ago

So do a lot of things our government does. I am glad that my monthly donation to the EFF at the very least is being used to push back.

LatteLazy 7y ago

So what? If the supreme Court refuse to heard the case, like they have with the Patriot Act and pretty much every similar case since Sept 11th, nothing will stop it.

cyphar 7y ago

It's strange to me that technology workers are seemingly unwilling to unionise and hold general strikes to protest these kinds of policies -- if we aren't willing to take real collective action, we aren't ever going to have our voices heard. When Australia passed an even more ludicrous anti-encryption bill a year ago, the only real response by the technology community was a handful of blog posts (after it was too late to do anything about the legislation[+]) and grand-standing on twitter. Why are we so shocked when politicians don't listen to us? We act like petulant children -- small bursts of outrage, but with no consequences for the people in power. [+]: Most posts were published either a day or two before it passed through the House of Reps, and some were posted during the day of the Senate discussion and passage. I did submit comments during the comment period, but we all know that had zero effect on their decisions.

_red 7y ago
> the only real response by the technology community was a handful of blog posts Something that is rarely talked about anymore but true is that the original 'internet culture' from the early 90s is basically dead. The ethos of that age was an active distrust of government and centralized authority. Further, there was a lack of trust in politics in general. That's basically gone now. The new technologist are not just unprincipled, they are deeply political and will support whatever initiative their tribe is pursuing. Even more cynical, is how can they even be against 'spying' and 'privacy violations'? 90% of the jobs available involve doing just that. There is no way to have a world both against the EARN IT act and yet work for FB, Google, etc - they are basically all part of the same spyware industry.
- deleted 7y ago
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- icedchai 7y ago
  That age died when the general public started coming online. That was the time when people self hosted their own email and web servers. Nobody has time for that anymore. Sadly, centralization is simpler. And privacy was an illusion anyway.
- 7y ago

duncan_bayne 7y ago

It's funny (to me) that people are surprised that Feinstein is so willing to trample over Constitutional protections while blithely ignoring the objections of the citizens she (in theory) represents. For years, this has been her approach to the 2nd amendment, and to be honest, most geeks have either remained silent, or applauded her actions. Now she's coming for the 4th amendment, and geeks are up in arms (humour intentional).

AdrianB1 7y ago
Many people believe the second amendment is wrong and it does not require protection, but they still care about the 4th. The only thing I always think about when I see this: https://en.wikipedia.org/wiki/First_they_came_.. https://en.wikipedia.org/wiki/First_they_came_...
- tialaramex 7y ago
  The Second Amendment was probably a bad idea when it was written. Its proponents made a bunch of assumptions that look laughable in hindsight. Today in the hands of a Supreme Court increasingly disconnected from reality it's interpreted as an excuse to let people who clearly shouldn't have guns at all have as many guns as they can buy. "First they came..." is about people not about ice cream flavors, or video games or constitutional amendments. Changing laws is a normal function of society. It is an anomaly (and a grave defect) that the US has become unable to even think of changing these particular laws, to the point where many of its people enshrine them as holy principles rather than recognising they are just laws of men. It has been forever since America had judges brave enough to argue that something can't be lawful because it is evil, and so the EFF is obliged to frame things as "unconstitutional" instead. In a way that's America's legacy, the observation that slavery was evil pre-dates its founding as a country built on slavery, so it has always been necessary to its function to pretend that it's somehow important to allow evil if it's legal. In such an environment any potential judge with strong moral character could only be discouraged.
  - david_w 7y ago
    How do you propose the People should resist a despotic government. Supposing, as we must, the government literally becomes tyrannical, how do propose people resist it at that point? That is the whole reason we have a 2nd Amendment. That's what it's about. We went in with everything to Iraq and Afghanistan and did we subdue them? No. Why not? Because they had guns, and with guns, they acquired further weaponery to fight us; No other reason. So you remove all the guns from "people who shouldn't have them" and how do you propose people should resist a tyrannical government? Serious question, I am not mocking you.

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david_w 7y ago

Like the EFF cares about free speech. Like they have showed up even once to campuses across the nation to defend the Constitutional rights of their ideological opponents. Everyone knows the EFF and the ACLU are thinly camoflaged shells of their former selves, tactically pushing for whatever will advance their quest for power. Yeah, we know that if we want help defending our Constitutional rights, we go to non-psychopathic organzations like FIRE and Judical Watch and Project Veritas. They defend strong encryption because it's a tool their side still needs, for now. Defending the Constitution and free speech is just a temporary tactic for them until they get more power, the sort of power they now wield openly on campuses across this nation and which you use to silence anyone who disagrees with them. After that, they'll start talking about how old the Constitution is, how its from another, quainter time, and how it needs now to be put aside.... and how important it is the government oversee people's speech lest someone utter hatespeak .....and consequently we must ban strong encryption. Or, in their own words: https://www.eff.org/pages/speaking-freely-sandra-ordonez https://www.eff.org/pages/speaking-freely-sandra-ordonez

AdrianB1 7y ago
That link: good catch, I had no idea.
up_o 7y ago
lol
uk_programmer 7y ago
> "Hate Speech is not Free Speech". Yes this old chestnut. This has been used to trample over our rights in the UK.
KarlKemp 7y ago
The EFF didn’t change. You just went off the deep end. They don’t care about your pet issue of alt-right 4chan stars not getting rooms at universities because there just is no right to get meeting space at public universities. (And what a surprise that what bothers you most is the EFF supporting a woman)

stevespang 7y ago

End to end encryption products obtained offshore with the 2nd amendment handily lying nearby is the only way forward.

emilecantin 7y ago

I like to see legislation as similar to computer code, where the "computer" is society & the courts. There are a lot of parallels: the actual laws that are passed often look like diffs explained with words (insert this word here, remove this sentence, etc), every concept has to be explicitely defined, and you have to think of all the corner-cases otherwise you get unforeseen consequences, etc. Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it. The fact that most legislators are actually terrible coders doesn't help at all either.

gerikson 7y ago
> Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it. That's because law professionals make a very good living by dealing with the technical debt - a bit like the worst kinds of IT consultants.
jacques_chester 7y ago
This analogy is commonly drawn by programmers. Like many analogies it's imperfect. Law in the Common Law countries (the UK, US, Australia, Canada, NZ etc) has two main sources: case law and legislation. They are both the law. Case law derives its power from precedent, legislation from declaration. But they are both the law. Legislation read in isolation will not give you a correct understanding of the law. More specifically: > Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it. Reform acts are passed all the time, often consolidating caselaw, or consolidating legislation, or both. Just as often there's a process of cleaning up the attic and finding old legislation that needs to be repealed. Where I studied law, the Law of Property Act 2000 (NT) included repeals for Acts going back as far as 1266[0]. But a legislature has limited bandwidth. Within this bandwidth there is a fat tail distribution of attention. Contentious issues frequently absorb legislative time and effort out of proportion to their size or complexity. This is not a matter of legislation-as-code, this is a matter of the economics of public choice and bargaining. > The fact that most legislators are actually terrible coders doesn't help at all either. Legislation is typically drafted by professional drafters working for the legislature. Some comes from "model acts" provided by lobbyists, these too drafted by professionals. Drafting legislation is as hard or harder than coding. There are no debugging tools, no test suites, everything is done live in production with potentially unlimited consequences. Those drafters work with immense care and often under absurd deadlines. [0] http://classic.austlii.edu.au/au/legis/nt/consol_act/lopa2000198/sch4.html http://classic.austlii.edu.au/au/legis/nt/consol_act/lopa200...

fmakunbound 7y ago

It's amazing what you can get done in the name of saving the children.

snarf21 7y ago
Fear-mongering is strong. Look at all the freedoms we lost after 9/11. Pedophiles and terrorists and porn are always the scapegoats.

frankzen 7y ago

What is it about weak encryption that has these politicians convinced that using it won't lead to higher incidents of hacking and identity theft? We're already dealing with one blow to our economy, should we bracing for a second?