[mindslight]

The 3rd, 4th, and 5th amendments say otherwise. While you're right in the narrow implication-following sense, you're wrong in the general big-picture sense. Similar to how the 4th amendment was broken with mass adoption of the automobile, and the 6th/7th were broken by commercial law (have you ever been able to get a jury trial for a speeding ticket?)

In the past, ephemeral day-to-day communications were not accessible to the courts, because they were carried out face to face. These days, those same communications are carried out electronically. Similarly with storage - due to the complexity brought on by computers, there is simply much more to correctly remember in today's world, necessitating the use of auxiliary storage for one's brain.

The attack on encryption is a direct attack on whether individuals' computers should function as their personal agents (akin to lawyer and priest professional confidentiality), or whether individuals are prevented from personally wielding the amplifying power of computation and left at the mercy of powerful groups who do.

[tptacek]

I'm probably not wrong about this. As I've said: the Supreme Court has more than once confirmed that the common law principle of the state's entitlement to evidence is, in fact, the law of the land here as well.

We limit the state's access to evidence through judicial oversight. We do not, as a general rule, allow individuals to further overrule that access.

[mindslight]

Sure, but the Supreme Court also uses narrow implication-following. Existing rules or precedents generate another precedent. And society is doing the same thing with path-dependent adoption of technology.

As computer scientists, we know this can only lead to eventual contradictions. Old concepts are subsumed with new definitions in different abstractions. "Plan to meet up for dinner" used to mean a face-to-face talk when you bumped into someone on the street or, later, over two direct analog wires that were equally ephemeral as long as nobody was a priori recording. Now it means digital messages that are automatically stored indefinitely.

The right to privacy should apply generally to each definition, but when you analyze with local reasoning of course the latter message is voluntarily stored on a bazillion servers and sent over tapped fibre.

Which is why I gave some other concrete examples. Do a plain reading of the 6th and 7th amendments, and wonder why a speeding ticket does not result in a jury trial. But follow the path of legal reasoning that got us to the present condition, and you can see how the ideals were subsumed and discarded.

[tptacek]

I'm really not sure what the rules of evidence have to do with your right to a jury trial in the adjudication of a small fine.

(There are places where you do have a right to full trial over a traffic fine, but you wouldn't want to avail yourself of that right).

[mindslight]

They're both examples of the same general phenomenon - complexity-induced contradictions eroding our rights.

[tptacek]

I'm pretty sure the concept of petty or mechanical offenses for which you aren't entitled to a jury predates the Constitution, so I'm not sure I see the erosion.

[mindslight]

I'm pretty sure the concept of offenses for which you weren't entitled to due process precipitated the Constitution.

I also don't see how a ~$1k punishment for a slight speed infraction is "petty".

[schoen]

We had a mini-debate about this with rayiner in another thread pointing out that people have always been allowed to use cryptography in America and have always done so, and that it's often made it harder and occasionally impossible for the government to figure stuff out. It's true that it was always a very deliberate decision and effort in the past, rather than something particularly convenient or automatic, but people have had ciphers for centuries, and some of those have been successful at obscuring communications from governments, and in the U.S. there was no apparent suggestion that this was legally improper.

[tptacek]

The problem policymakers are faced with is:

* Everyone is going to use encryption by default, without trying or even knowing what cryptography is.

* That cryptography is going to be unbreakable, not just by today's investigators but possibly for millennia. Even if quantum attacks on crypto are possible, we have ciphers that will hold up, and computers are already small and fast enough to make their added expense a rounding error.

This is a very different situation than the Barksdale crew using a keypad code. 70 years ago, military grade crypto was crackable (and doing so helped us win World War 2). That isn't going to happen in 70 years, ever again.

[schoen]

In this case I think the strength of my argument is just about whether people are allowed to try to conceal their communications from the government, and the historical legal answer is yes, not no!

I agree that they're likely to do a dramatically better job of it in the future than they could have before and that it will be easier.

[tptacek]

I'm not sure I follow, since knowingly concealing evidence is itself a crime in a lot of places.

[jsprogrammer]

>(have you ever been able to get a jury trial for a speeding ticket?)

Here is a LEO forum discussing jury trials for moving violations (running stop sign, etc.): http://forums.officer.com/t107818/

[mindslight]

And from that thread it seems per-state ("CA did away with jury trials for infractions long ago"), while the US constitution is country wide. Apparently some states that I'm unfamiliar with allow the option to better preserve their illusion.

Also witness how the officers gleefully go about trampling the 5th amendment:

> Rejoice in the fact that, win or lose: ... It's still going to cost the violator more for the attorney than the fine will be.

Yet another example of the effect I'm describing - de jure it makes sense as it's one's own responsibility to pay for an attorney. de facto it constitutes an extrajudicial punishment that police directly acknowledge.