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Interesting tangential link: my understanding is that device / encryption security is also rooted in the 1st Amendment? In that, by compelling the creation of

by ethbr0 5y ago

Interesting tangential link: my understanding is that device / encryption security is also rooted in the 1st Amendment? In that, by compelling the creation of a backdoor (by writing or modifying code, that did not exist before the demand) the government violates an individual's right to free speech, by which they cannot be compelled to speak in a certain manner. But at the same time, that "freedom" already appears to give way to the social good of equality for protected classes (i.e. personal characteristics). Thorny set of issues to balance.

moonchild 5y ago
I am not sure, but I know the 5th amendment is relevant: you cannot be forced to incriminate yourself by decrypting encrypted materials. Strong cryptography was also classified as weaponry at one point, and probably hence also subject to the 2nd amendment; whether this is still true, I don't know.
torstenvl 5y ago
Yes. This is a key insight. The gravamen of this case is compelled speech. Put simply: the government has the power to make a business involved in commerce not discriminate against people, but does it have the power to compel speech? Fundamental Constitutional principles and existing case law seem to say no. Over the past thirty years, this has been an evolving issue, starting with things like forcing people to say the Pledge of Allegiance. I wouldn't be shocked if we see challenges to mandatory expanded census questions in 2030 or 2040. And certainly compelling encryption backdoors is an issue that's been in the news the past few years. It's disconcerting to me, as a gay man, that this issue has been pushed this far. In my adult life, it has been a crime for me to have a sexual relationship. In my adult life it has been unlawful for me to get married. Historically, excessive government control over people has not worked out well for minorities, and it's a bit Uncle Tom-ish to try to use government to force people into conduct that aligns with your personal values. Structures and powers analyses are important. When looking at a question of the scope of government power, ask yourself: would you feel comfortable giving this power to your political adversaries? If the Religious Right had a majority in Congress or a state legislature, would the gay litigants in this case support the government's right to, say, make all wedding-related speech include praise of one-man-one-woman as the ideal form of marriage? A government without protections for individual rights of freedom and conscience isn't a republic, it's a mob. Mobs never turn out well for the little guy in the long run.

by ethbr0 5y ago

moonchild 5y ago

I am not sure, but I know the 5th amendment is relevant: you cannot be forced to incriminate yourself by decrypting encrypted materials. Strong cryptography was also classified as weaponry at one point, and probably hence also subject to the 2nd amendment; whether this is still true, I don't know.

torstenvl 5y ago

Yes. This is a key insight. The gravamen of this case is compelled speech. Put simply: the government has the power to make a business involved in commerce not discriminate against people, but does it have the power to compel speech? Fundamental Constitutional principles and existing case law seem to say no. Over the past thirty years, this has been an evolving issue, starting with things like forcing people to say the Pledge of Allegiance. I wouldn't be shocked if we see challenges to mandatory expanded census questions in 2030 or 2040. And certainly compelling encryption backdoors is an issue that's been in the news the past few years. It's disconcerting to me, as a gay man, that this issue has been pushed this far. In my adult life, it has been a crime for me to have a sexual relationship. In my adult life it has been unlawful for me to get married. Historically, excessive government control over people has not worked out well for minorities, and it's a bit Uncle Tom-ish to try to use government to force people into conduct that aligns with your personal values. Structures and powers analyses are important. When looking at a question of the scope of government power, ask yourself: would you feel comfortable giving this power to your political adversaries? If the Religious Right had a majority in Congress or a state legislature, would the gay litigants in this case support the government's right to, say, make all wedding-related speech include praise of one-man-one-woman as the ideal form of marriage? A government without protections for individual rights of freedom and conscience isn't a republic, it's a mob. Mobs never turn out well for the little guy in the long run.