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Kerr's claim that "The Supreme Court tries to roughly maintain the balance of Fourth Amendment protection over time as technology shifts, so that technological

Kerr's claim that "The Supreme Court tries to roughly maintain the balance of Fourth Amendment protection over time as technology shifts, so that technological change doesn’t give the government too much power (which would lead to abuses) or take too much power away from the government (which would make it too easy to commit crimes undetected)." demonstrates a misunderstanding of the purpose of the Constitution. The Bill of Rights are strict checks on government power, not guidelines on how much infringement on individuals is acceptable. The Fourth Amendment reads "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." There's no exception in there that can be read as "unless it makes the job of the government really hard." No individual criminals or groups of terrorists pose the kind of threat that an overreaching government does. Encrypt it all.

snowwrestler 12y ago
The "exception" to the 4th Amendment would be a search/seizure that satisfies conditions set forth in the language of the amendment. Once those conditions are satisfied, the Constitutional checks are passed and the government can bring quite a lot of power to bear. One of those powers is compelling cooperation from 3rd parties. Before telecommunications, the government could use a warrant to force a bank to open a person's safe deposit box (for example). Unbreakable encryption would be like an unopenable safe deposit box--it would prevent the execution of even the most obviously lawful and justified search. That would be a shift in the practical balance between government powers and individual rights. You might applaud that shift, but I hope you would agree that it potentially exists.
slg 12y ago
I think your interpretation of the amendment is a little too rigid. There is plenty of room for debate depending on your definitions of a variety of words. One key example that is directly related to technology is how do we define a "seizure". Does copying data count as a seizure considering the original was not taken or altered in any way? If so, the government would legally be allowed to copy everything that happens on the internet and then only look at it once they get a warrant. That would seem to be something that is allowed by the letter of the amendment but perhaps not the spirit of it.
- hawleyal 12y ago
  I'd say if filesharing counts as stealing then copying counts as seizure.
  - seanflyon 12y ago
    But filesharing is never legally considered theft. It is considered a violation of copywrite.
    - hawleyal 12y ago
      The term is copyright, and you know exactly what I mean.
      - seanflyon 12y ago
        I know what you mean and it's not a valid point. Whether or not we are allowed to copy someone's copyrighted work has nothing to do with how we interpret the 4th amendment.
tptacek 12y ago
This just isn't true. Of all the amendments in the Bill of Rights, the Fourth is uniquely amenable to Kerr's argument, because it includes the word "reasonable" --- which meant the same thing at the time of the founders as it does today: the right to be free from searches is balanced against the interests of the state. (I disagree with Kerr's argument, and obviously strongly support encryption, but his Fourth Amendment argument from what I can tell squares easily with the design of the Bill of Rights.)
hackuser 12y ago
> There's no exception in there that can be read as "unless it makes the job of the government really hard." Law is not like code, an algorithm that is followed literally and logically. The U.S. Constitution's First Amendment is equally clear, but you can't yell fire in a dark, crowded movie theater. The Second Amendment does not differentiate cruise missiles from handguns, but you cannot own a cruise missile. I would not want it otherwise. The laws never will be written perfectly, so we need a system to deal with those flaws. Another way to think of it is that there are edge cases, many of which were not anticipated by people who wrote the code, some over 200 years ago. EDIT: Another way to think about it: If the law permits something horrible (e.g., 'sale of first-born children') because it was written poorly or unclearly, should the courts allow first-borns to be sold until Congress fixes it? What if the law explicitly allows something, such as denial of voting rights to an ethnic group?
- anonymoushn 12y ago
  In the SF bay area, I can "keep" but not "bear," and in many other locations in the U.S. it is illegal to possess the means of self-defense at all. The ability of policymakers to completely disregard the Constitution lets us enact policies preventing the ownership of cruise missiles, but it also lets them disarm citizens entirely, require people to verbally invoke the right to remain silent, and so on. We could do these things without disregarding the constitution. For instance, we could hold a constitutional convention and ban private ownership of cruise missiles, grenades, rocket launchers, SAMs, nuclear weapons, most 9mm handgun magazines used by police ("High capacity magazines"), and rifles that look scary but kill almost nobody. We could also repeal the 5th amendment. Instead of doing these things, we make them policy in contradiction of the law.
  - hackuser 12y ago
    > For instance, we could hold a constitutional convention ... Instead of doing these things, we make them policy in contradiction of the law. I agree with the principle ... but: Imagine if updates to your software project required consensus of over 300 million people, sometimes about very heated questions. I think you would only do updates in extremis and otherwise use other mechanisms to resolve issues. Practically, how do we address this problem?

snowwrestler 12y ago

The "exception" to the 4th Amendment would be a search/seizure that satisfies conditions set forth in the language of the amendment. Once those conditions are satisfied, the Constitutional checks are passed and the government can bring quite a lot of power to bear. One of those powers is compelling cooperation from 3rd parties. Before telecommunications, the government could use a warrant to force a bank to open a person's safe deposit box (for example). Unbreakable encryption would be like an unopenable safe deposit box--it would prevent the execution of even the most obviously lawful and justified search. That would be a shift in the practical balance between government powers and individual rights. You might applaud that shift, but I hope you would agree that it potentially exists.

slg 12y ago

I think your interpretation of the amendment is a little too rigid. There is plenty of room for debate depending on your definitions of a variety of words. One key example that is directly related to technology is how do we define a "seizure". Does copying data count as a seizure considering the original was not taken or altered in any way? If so, the government would legally be allowed to copy everything that happens on the internet and then only look at it once they get a warrant. That would seem to be something that is allowed by the letter of the amendment but perhaps not the spirit of it.

hawleyal 12y ago
I'd say if filesharing counts as stealing then copying counts as seizure.
- seanflyon 12y ago
  But filesharing is never legally considered theft. It is considered a violation of copywrite.
  - hawleyal 12y ago
    The term is copyright, and you know exactly what I mean.
    - seanflyon 12y ago
      I know what you mean and it's not a valid point. Whether or not we are allowed to copy someone's copyrighted work has nothing to do with how we interpret the 4th amendment.

tptacek 12y ago

This just isn't true. Of all the amendments in the Bill of Rights, the Fourth is uniquely amenable to Kerr's argument, because it includes the word "reasonable" --- which meant the same thing at the time of the founders as it does today: the right to be free from searches is balanced against the interests of the state. (I disagree with Kerr's argument, and obviously strongly support encryption, but his Fourth Amendment argument from what I can tell squares easily with the design of the Bill of Rights.)

hackuser 12y ago

> There's no exception in there that can be read as "unless it makes the job of the government really hard." Law is not like code, an algorithm that is followed literally and logically. The U.S. Constitution's First Amendment is equally clear, but you can't yell fire in a dark, crowded movie theater. The Second Amendment does not differentiate cruise missiles from handguns, but you cannot own a cruise missile. I would not want it otherwise. The laws never will be written perfectly, so we need a system to deal with those flaws. Another way to think of it is that there are edge cases, many of which were not anticipated by people who wrote the code, some over 200 years ago. EDIT: Another way to think about it: If the law permits something horrible (e.g., 'sale of first-born children') because it was written poorly or unclearly, should the courts allow first-borns to be sold until Congress fixes it? What if the law explicitly allows something, such as denial of voting rights to an ethnic group?

anonymoushn 12y ago
In the SF bay area, I can "keep" but not "bear," and in many other locations in the U.S. it is illegal to possess the means of self-defense at all. The ability of policymakers to completely disregard the Constitution lets us enact policies preventing the ownership of cruise missiles, but it also lets them disarm citizens entirely, require people to verbally invoke the right to remain silent, and so on. We could do these things without disregarding the constitution. For instance, we could hold a constitutional convention and ban private ownership of cruise missiles, grenades, rocket launchers, SAMs, nuclear weapons, most 9mm handgun magazines used by police ("High capacity magazines"), and rifles that look scary but kill almost nobody. We could also repeal the 5th amendment. Instead of doing these things, we make them policy in contradiction of the law.
- hackuser 12y ago
  > For instance, we could hold a constitutional convention ... Instead of doing these things, we make them policy in contradiction of the law. I agree with the principle ... but: Imagine if updates to your software project required consensus of over 300 million people, sometimes about very heated questions. I think you would only do updates in extremis and otherwise use other mechanisms to resolve issues. Practically, how do we address this problem?