6 ms·

Focusing on concrete harms is important. In front of the supreme court you want to be able to say "This law is devastating to journalism, a fundamental institut

Focusing on concrete harms is important. In front of the supreme court you want to be able to say "This law is devastating to journalism, a fundamental institution in our democracy." Rather than sounding like a screeching privacy activist to nine nontechnical judges.

smsm42 6y ago
I wouldn't care if it were devastating only to the current press, it is beyond awful anyway. If it kills privacy that's completely other matter. And SCOTUS judges are anything but stupid, they know what privacy is and how important it is. They maybe don't know technical details of elliptic curve encryption algorithms, but one doesn't need those to understand what's going on, the debate about privacy vs. safety wasn't born yesterday and the judges heard it all already. So no need to pander to anybody, and no need to misrepresent the issue to the public.
- pilsetnieks 6y ago
  > I wouldn't care if it were devastating only to the current press, it is beyond awful anyway You're confusing the 24/7 TV infotainment with proper journalism. TV anchors peddling stories optimized to maximum viewership for the purpose of advertising is just one aspect to it, and it would be the least hurt by this. Real investigative journalism would be hit much harder.
  - JoeAltmaier 6y ago
    If 'real journalism' wasn't long in its grave. Remember '60 minutes'? All rigged to make the reporters look like geniuses, and slanted to make every poor schlep look like a conspirator.
  - smsm42 6y ago
    I'm not confusing anything, I am saying "proper journalism" is not something that is done in the mainstream press now, at least not in the quantities worth talking about. It's an exception rather than the rule. Pretty much nothing in most of the press is optimized for it. So I don't see why anything we do should be optimized for the needs of the press. Privacy is important, but not because the press is special and they need it. It's because we, regular shmoes, need it. If it also helps the press, well, they are people too. But no more people than the rest of us.
- pmiller2 6y ago
  No one is saying anyone on the SCOTUS is stupid. In fact, the opposite is the real problem: they are professional legal scholars with a wide knowledge of legal precedent. Applying legal arguments to real life situations often leads to conclusions that people who aren’t judges or lawyers would consider absurd.
  - smsm42 6y ago
    That has been the case for the last 250 years and somehow the republic survived that pretty well. Surely there were some absurd SCOTUS decisions, but there were also some absurd laws, absurd executive orders and absurd government actions on all levels. Nothing changed there, SCOTUS haven't become any different than it was and is as capable of handling complexities of life as it ever was. I don't think there's any need to specifically single out journalists as special protected class that have different rights form all other people and need special care from SCOUS who otherwise will be unable to figure out such thing as destroying privacy on the internet.
RcouF1uZ4gsC 6y ago
And the justices will point out that journalism predates end-to-end encryption and investigative journalism used phones and mail and in person meetings quite effectively.
- chance_state 6y ago
  I don't think that's an effective counter argument. Sourcing journalism in the 21st century means living and working with 21st century technology. It's not reasonable or realistic to tell journalists to go back to using the mail if they don't like their communications being intercepted.
  - microcolonel 6y ago
    You may not find it reasonable, but you're responding to somebody reasoning it, an argument like this is actually pretty common at court. “it seems kinda crazy” is a losing argument.
- bradstewart 6y ago
  And while that's true, adversaries have significantly more resources at their disposal now. So the "old" ways of phones, mail, and in person meetings are no longer secure.
- whatshisface 6y ago
  The US has laws against snooping on the mail - so before encryption, it was illegal for the government to even try to snoop (search and seizure). The only reason this is even an issue now is that digital information is not being legally treated in the same way as physical information. If we had laws to prevent the government from ever opening your email, that would be a solution worse than encryption (laws are easier to break than elliptic curves), but it would achieve some of the same goals. However, you will never see the advocates of cleartext laws propose that trade - they don't want the same rules as we had in the 1800s, they want looser rules!
- roywiggins 6y ago
  The same ones who are poised to strike off any gun regulations that don't date back to the Revolutionary War, presumably.
nickff 6y ago
Only one of the justices (Sotomayor) regularly appeals to specific examples. The first amendment free speech clause would likely be the most effective argument, followed by the fifth and fourth amendments.
- api 6y ago
  I've wondered for a long time whether the second amendment also has anything to say about cryptography.
  - nickff 6y ago
    I have heard that argument made, but it seems to be a peculiar result of the government classifying private key encryption as a weapon to keep it secret during the cold war. I think that the founding fathers would have believed people had a right to encryption, but that it was covered by the tenth amendment or first amendment. I believe that at least some of the founding fathers did use codes and invisible inks. I can't imagine any of them would have seen codes as weapons.
  - smsm42 6y ago
    A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Not sure which part is about cryptography. Unless you consider algorithms to be "arms", but then what isn't?
    - LukeShu 6y ago
      > Unless you consider algorithms to be "arms" As the Arms Export Control Act did. > but then what isn't? Things not named in the United States Munitions List.
      - smsm42 6y ago
        That's not a functional definition, that's "government does what it wants" definition. No point in having Constitution and Bill of Rights then - the government can put whatever freedoms it wants on United States Freedoms List and remove whatever it wants from there anytime it wants to. If there's nothing outside contemporary whim of the government and any government decision is as legitimate as another - then what's the point of discussing constitutional amendments and rights anyway? Rights are what the government says they are, and that's it.
microcolonel 6y ago
The feeling that the legacy press class would suffer under this legislation is probably a selling point of the bill, for much of the public. Reminds me of my elementary school French language teachers, when I would ask them why somebody would want to learn French in Anglo Canada, and they say "you can get a government job!". The core problem with this is that it concretely undermines the basic privacy of every American.
Mirioron 6y ago
The fear is that journalists will focus on the one concern that affects them. Politicians see that and give journalists an exemption. Everyone else is still screwed.
- jedberg 6y ago
  Ah, but much like backdoors in encryption, a single exemption is all that is needed. If journalists are exempt, suddenly we all become journalists.
  - pmiller2 6y ago
    Presumably, the exemption would come with a definition, which not all of us can meet.
    - jedberg 6y ago
      In a world where anyone can publish, you'd be hard pressed to come up with a definition that wasn't accessible to most anyone.
      - pmiller2 6y ago
        You're assuming the definition would be broad enough to cover "anyone." Maybe it includes something like "belongs to a recognized news organization," or some such. What are your press credentials? What if you were no longer "recognized"?
        jedberg 6y ago
        If it said "belongs to a recognized news org" I'll bet the Washington Post would figure out a way to allow you to affiliate yourself with them so you can use E2EE. Or someone could start a news org and get "recognized" and then allow anyone to affiliate. People are creative. They'll find a workaround.
        6y ago

smsm42 6y ago

I wouldn't care if it were devastating only to the current press, it is beyond awful anyway. If it kills privacy that's completely other matter. And SCOTUS judges are anything but stupid, they know what privacy is and how important it is. They maybe don't know technical details of elliptic curve encryption algorithms, but one doesn't need those to understand what's going on, the debate about privacy vs. safety wasn't born yesterday and the judges heard it all already. So no need to pander to anybody, and no need to misrepresent the issue to the public.

pilsetnieks 6y ago
> I wouldn't care if it were devastating only to the current press, it is beyond awful anyway You're confusing the 24/7 TV infotainment with proper journalism. TV anchors peddling stories optimized to maximum viewership for the purpose of advertising is just one aspect to it, and it would be the least hurt by this. Real investigative journalism would be hit much harder.
- JoeAltmaier 6y ago
  If 'real journalism' wasn't long in its grave. Remember '60 minutes'? All rigged to make the reporters look like geniuses, and slanted to make every poor schlep look like a conspirator.
- smsm42 6y ago
  I'm not confusing anything, I am saying "proper journalism" is not something that is done in the mainstream press now, at least not in the quantities worth talking about. It's an exception rather than the rule. Pretty much nothing in most of the press is optimized for it. So I don't see why anything we do should be optimized for the needs of the press. Privacy is important, but not because the press is special and they need it. It's because we, regular shmoes, need it. If it also helps the press, well, they are people too. But no more people than the rest of us.
pmiller2 6y ago
No one is saying anyone on the SCOTUS is stupid. In fact, the opposite is the real problem: they are professional legal scholars with a wide knowledge of legal precedent. Applying legal arguments to real life situations often leads to conclusions that people who aren’t judges or lawyers would consider absurd.
- smsm42 6y ago
  That has been the case for the last 250 years and somehow the republic survived that pretty well. Surely there were some absurd SCOTUS decisions, but there were also some absurd laws, absurd executive orders and absurd government actions on all levels. Nothing changed there, SCOTUS haven't become any different than it was and is as capable of handling complexities of life as it ever was. I don't think there's any need to specifically single out journalists as special protected class that have different rights form all other people and need special care from SCOUS who otherwise will be unable to figure out such thing as destroying privacy on the internet.

RcouF1uZ4gsC 6y ago

And the justices will point out that journalism predates end-to-end encryption and investigative journalism used phones and mail and in person meetings quite effectively.

chance_state 6y ago
I don't think that's an effective counter argument. Sourcing journalism in the 21st century means living and working with 21st century technology. It's not reasonable or realistic to tell journalists to go back to using the mail if they don't like their communications being intercepted.
- microcolonel 6y ago
  You may not find it reasonable, but you're responding to somebody reasoning it, an argument like this is actually pretty common at court. “it seems kinda crazy” is a losing argument.
bradstewart 6y ago
And while that's true, adversaries have significantly more resources at their disposal now. So the "old" ways of phones, mail, and in person meetings are no longer secure.
whatshisface 6y ago
The US has laws against snooping on the mail - so before encryption, it was illegal for the government to even try to snoop (search and seizure). The only reason this is even an issue now is that digital information is not being legally treated in the same way as physical information. If we had laws to prevent the government from ever opening your email, that would be a solution worse than encryption (laws are easier to break than elliptic curves), but it would achieve some of the same goals. However, you will never see the advocates of cleartext laws propose that trade - they don't want the same rules as we had in the 1800s, they want looser rules!
roywiggins 6y ago
The same ones who are poised to strike off any gun regulations that don't date back to the Revolutionary War, presumably.

nickff 6y ago

Only one of the justices (Sotomayor) regularly appeals to specific examples. The first amendment free speech clause would likely be the most effective argument, followed by the fifth and fourth amendments.

api 6y ago
I've wondered for a long time whether the second amendment also has anything to say about cryptography.
- nickff 6y ago
  I have heard that argument made, but it seems to be a peculiar result of the government classifying private key encryption as a weapon to keep it secret during the cold war. I think that the founding fathers would have believed people had a right to encryption, but that it was covered by the tenth amendment or first amendment. I believe that at least some of the founding fathers did use codes and invisible inks. I can't imagine any of them would have seen codes as weapons.
- smsm42 6y ago
  A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Not sure which part is about cryptography. Unless you consider algorithms to be "arms", but then what isn't?
  - LukeShu 6y ago
    > Unless you consider algorithms to be "arms" As the Arms Export Control Act did. > but then what isn't? Things not named in the United States Munitions List.
    - smsm42 6y ago
      That's not a functional definition, that's "government does what it wants" definition. No point in having Constitution and Bill of Rights then - the government can put whatever freedoms it wants on United States Freedoms List and remove whatever it wants from there anytime it wants to. If there's nothing outside contemporary whim of the government and any government decision is as legitimate as another - then what's the point of discussing constitutional amendments and rights anyway? Rights are what the government says they are, and that's it.

microcolonel 6y ago

The feeling that the legacy press class would suffer under this legislation is probably a selling point of the bill, for much of the public. Reminds me of my elementary school French language teachers, when I would ask them why somebody would want to learn French in Anglo Canada, and they say "you can get a government job!". The core problem with this is that it concretely undermines the basic privacy of every American.

Mirioron 6y ago

The fear is that journalists will focus on the one concern that affects them. Politicians see that and give journalists an exemption. Everyone else is still screwed.

jedberg 6y ago
Ah, but much like backdoors in encryption, a single exemption is all that is needed. If journalists are exempt, suddenly we all become journalists.
- pmiller2 6y ago
  Presumably, the exemption would come with a definition, which not all of us can meet.
  - jedberg 6y ago
    In a world where anyone can publish, you'd be hard pressed to come up with a definition that wasn't accessible to most anyone.
    - pmiller2 6y ago
      You're assuming the definition would be broad enough to cover "anyone." Maybe it includes something like "belongs to a recognized news organization," or some such. What are your press credentials? What if you were no longer "recognized"?
      - jedberg 6y ago
        If it said "belongs to a recognized news org" I'll bet the Washington Post would figure out a way to allow you to affiliate yourself with them so you can use E2EE. Or someone could start a news org and get "recognized" and then allow anyone to affiliate. People are creative. They'll find a workaround.
        6y ago