[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".

[tptacek]

If that were the case, why hasn't contempt of court ever required a jury trial?

[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.