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Yeah... no. There's a line, and past that line, law enforcement has no power to enforce laws at all. Removing the DOJ's ability to collect evidence is, in som

Yeah... no. There's a line, and past that line, law enforcement has no power to enforce laws at all. Removing the DOJ's ability to collect evidence is, in some cases, the equivalent to denying a detective access to a crime scene. If all productions of electronic evidence can be encrypted, and the defense is not forced to decrypt those files, then dirty corporations only need to encrypt everything to defend themselves in court. Defense: "We produced everything you asked for." Prosecution: "We can't even verify that statement. Decrypt it" Defense: "We don't have to." Case closed.

andrewcooke 15y ago
rights are rights because they allow you to do what would otherwise be illegal. for example, there's no need for a right to free speech if you're only going to say things that everyone thinks should be said. rights exist because some things are so important they are worth the cost of abuse. At first blush it may be thought surprising that one should have a right to do that which one ought not. Is it not better to confine rights to that which it is right or at least permissible to do? But to say this is to misunderstand the nature of rights. One needs no right to be entitled to do the right thing. That it is right gives one all the title one needs. But one needs a right to be entitled to do that which one should not. It is an essential element of rights to action that they entitle one to do that which one should not. To say this is not, of course, to say that the purpose or justification of rights of action is to increase wrongdoing. Their purpose is to develop and protoect the autonomy of the agent. They entitle him to choose for himself rightly or wrongly. But they cannot do that unless they entitle him to choose wrongly. - Joseph Raz, The Authority of Law (p 266) the final sentence of the quote above is hugely important.
- djackson 15y ago
  Nobody has the right to avoid a reasonable search in the United States. You are protected by the fourth amendment from unreasonable searches, but you aren't going to convince me that a detective has no right, with a warrant in hand, to search a suspect's home for a murder weapon. Similarly, you aren't going to convince me that a prosecutor, warrant in hand, has no right to search a computer for evidence of credit card fraud.
  - andrewcooke 15y ago
    all i'm saying is that you can't say a right cannot exist because it lets bad things happen. in this case, there may be a right to silence. i don't know (i am not american) if that "really is" a right. but if it is a right then it exists even if it allows, say, a paedophile to escape justice (through remaining silent). it's not nice, but it's the price you pay to help guarantee freedom. [edit: it's perhaps worth adding that you could make rights more complicated. you could say that there is (or should be) a "right to silence except when it's a password", for example. there's no prima facie reason why rights should be simple. but there is a strong practical reason why rights should be simple: they need to be simple so that they are easy to understand, easy to defend, and easy to use. again, this is because rights - real rights - are critical, might-be-needed-to-save-the-world things. and that is also why there should only be a few of them.]
    - djackson 15y ago
      This case is not about rights, it's about a specific entity, the Department of Justice of the United States of America, having a specific investigative power, namely, that they don't have to keep a horde of expensive consultants on retainer to decrypt people's boring, completely legally irrelevant documents. On the off-chance that they lose that power, they'll still get whatever it is they want from your laptop, it'll just take longer and cost more. Nobody is revising the Bill of Rights, the Fourth or Fifth Amendments.
  - anonymous246 15y ago
    I think you're missing the conflict between allowing reasonable search and the right against self-incrimination when the thing being searched is an encrypted laptop. At least agree that there is a conflict here; otherwise you're just being dense. AFAIK the govt. cannot compel (legally) anybody to reveal the combination to a ticking time-bomb; or the location of a murder weapon etc. How the hell is asking for a passphrase any different? Do you really not understand the nuance here? The other point is that AFAIK the govt. has never asserted the right to compel a handwritten note to be deciphered. The govt. doesn't assert the right to systematically read people's mail (even postcards); but they do so wrt electronic comms. I think we can safely state that almost all comm. is going to be electronic in the future. That's why this is important. This is yet another example of the govt. trying to trim back rights that the hoi polloi have enjoyed for a couple of centuries. As to why this is important: you might have read the quote that six lines by any man's hand are enough to hang him. Sorry, I meandered a little there.
tomjen3 15y ago
At present, all you have to do is bury it in the woods. Sorry your honor there were no incriminating papers found.
someone13 15y ago
See, here's the issue. The burden of proof, in our court system, lies with the prosecutor. If I could just say "I know you killed that person, so bring me to the murder weapon and body", and charge the accused with contempt of court if they said "no", then there's a massive potential for abuse. For example, if the accused didn't actually do it, then they would get charged with contempt (or obstruction, or whatever), because they have nothing to show. Passwords to encrypted containers are slightly different - they're not as simple as a key to a safe, and not as obviously protected as my above (contrived) example. However, the same problem exists. If I compel you to decrypt an encrypted volume, and you don't actually have the password (i.e. it's a friends', or whatever), then it's similar enough to the example above. I'm not a lawyer, nor am I well-versed in law. But I know enough to say that it's not nearly as cut-and-dried as some people think.

andrewcooke 15y ago

rights are rights because they allow you to do what would otherwise be illegal. for example, there's no need for a right to free speech if you're only going to say things that everyone thinks should be said. rights exist because some things are so important they are worth the cost of abuse. At first blush it may be thought surprising that one should have a right to do that which one ought not. Is it not better to confine rights to that which it is right or at least permissible to do? But to say this is to misunderstand the nature of rights. One needs no right to be entitled to do the right thing. That it is right gives one all the title one needs. But one needs a right to be entitled to do that which one should not. It is an essential element of rights to action that they entitle one to do that which one should not. To say this is not, of course, to say that the purpose or justification of rights of action is to increase wrongdoing. Their purpose is to develop and protoect the autonomy of the agent. They entitle him to choose for himself rightly or wrongly. But they cannot do that unless they entitle him to choose wrongly. - Joseph Raz, The Authority of Law (p 266) the final sentence of the quote above is hugely important.

djackson 15y ago
Nobody has the right to avoid a reasonable search in the United States. You are protected by the fourth amendment from unreasonable searches, but you aren't going to convince me that a detective has no right, with a warrant in hand, to search a suspect's home for a murder weapon. Similarly, you aren't going to convince me that a prosecutor, warrant in hand, has no right to search a computer for evidence of credit card fraud.
- andrewcooke 15y ago
  all i'm saying is that you can't say a right cannot exist because it lets bad things happen. in this case, there may be a right to silence. i don't know (i am not american) if that "really is" a right. but if it is a right then it exists even if it allows, say, a paedophile to escape justice (through remaining silent). it's not nice, but it's the price you pay to help guarantee freedom. [edit: it's perhaps worth adding that you could make rights more complicated. you could say that there is (or should be) a "right to silence except when it's a password", for example. there's no prima facie reason why rights should be simple. but there is a strong practical reason why rights should be simple: they need to be simple so that they are easy to understand, easy to defend, and easy to use. again, this is because rights - real rights - are critical, might-be-needed-to-save-the-world things. and that is also why there should only be a few of them.]
  - djackson 15y ago
    This case is not about rights, it's about a specific entity, the Department of Justice of the United States of America, having a specific investigative power, namely, that they don't have to keep a horde of expensive consultants on retainer to decrypt people's boring, completely legally irrelevant documents. On the off-chance that they lose that power, they'll still get whatever it is they want from your laptop, it'll just take longer and cost more. Nobody is revising the Bill of Rights, the Fourth or Fifth Amendments.
- anonymous246 15y ago
  I think you're missing the conflict between allowing reasonable search and the right against self-incrimination when the thing being searched is an encrypted laptop. At least agree that there is a conflict here; otherwise you're just being dense. AFAIK the govt. cannot compel (legally) anybody to reveal the combination to a ticking time-bomb; or the location of a murder weapon etc. How the hell is asking for a passphrase any different? Do you really not understand the nuance here? The other point is that AFAIK the govt. has never asserted the right to compel a handwritten note to be deciphered. The govt. doesn't assert the right to systematically read people's mail (even postcards); but they do so wrt electronic comms. I think we can safely state that almost all comm. is going to be electronic in the future. That's why this is important. This is yet another example of the govt. trying to trim back rights that the hoi polloi have enjoyed for a couple of centuries. As to why this is important: you might have read the quote that six lines by any man's hand are enough to hang him. Sorry, I meandered a little there.

tomjen3 15y ago

At present, all you have to do is bury it in the woods. Sorry your honor there were no incriminating papers found.

someone13 15y ago

See, here's the issue. The burden of proof, in our court system, lies with the prosecutor. If I could just say "I know you killed that person, so bring me to the murder weapon and body", and charge the accused with contempt of court if they said "no", then there's a massive potential for abuse. For example, if the accused didn't actually do it, then they would get charged with contempt (or obstruction, or whatever), because they have nothing to show. Passwords to encrypted containers are slightly different - they're not as simple as a key to a safe, and not as obviously protected as my above (contrived) example. However, the same problem exists. If I compel you to decrypt an encrypted volume, and you don't actually have the password (i.e. it's a friends', or whatever), then it's similar enough to the example above. I'm not a lawyer, nor am I well-versed in law. But I know enough to say that it's not nearly as cut-and-dried as some people think.