[tptacek]

So your contribution to this discussion is the suggestion that having cited Lord Chancellor Hardwicke, discussed the distinction between search warrants and general warrants, and pointed out Branzberg v Hayes, maybe I was unfamiliar with the text of the 5th Amendment?

If the 5th Amendment doesn't protect your personal diary --- and it doesn't --- and it doesn't prevent the government from wiretapping your phone --- and it doesn't --- it's unlikely to bear heavily on this discussion either.

[jsprogrammer]

You claim there is no special allowance by the founders for an individual to conceal evidence.

Yet, the fifth amendment allows an individual to not be a witness against their self; if an individual is a witness to evidence against their self, they may conceal it, per the fifth amendment.

I said nothing of personal diaries or phones.

[tptacek]

The Fifth Amendment was intended to prevent torture and coerced confessions. It doesn't hide a general right to conceal evidence, which is itself a crime in many places in the US.

[jsprogrammer]

So, what do you do when the only valid evidence would be a confession, or other testimony that evidences the testifier's involvement in crime? As you said, the fifth amendment prohibits the use of violence in such cases.

I never argued for the existence of a 'general right to conceal evidence', only that, contrary to your very specific claim, the founders did allow for individuals to conceal evidence.

[tptacek]

If I understand what you're saying correctly, this happens all the time: for instance, it has happened every time an answering machine tape has been entered into evidence.

[jsprogrammer]

If I understand what you're saying correctly, this happens all the time: for instance, it has happened every time an answering machine tape has been entered into evidence.

No. An answering machine tape is not a person at criminal trial.

> nor shall be compelled in any criminal case to be a witness against himself

You are talking about physical evidence; an answering machine tape, presumably recording some prior conversation, is a physical artifact that already exists. In no way can you construe examining a pre-constructed physical artifact as compelling a criminal defendant to witness against their self [It would imply criminal defendant is somehow the physical artifact itself.].

If I am not mistaken, 'witness' refers to making real claims about events at trial. Making real claims that one performed criminal activities at trial can be construed as evidence. An individual may conceal that evidence by not revealing it, and I don't believe US law allows any way to reveal such evidence.

[Alupis]

> So your contribution to this discussion

> it's unlikely to bear heavily on this discussion either.

Why so much snark anytime someone disagrees with you?

> If the 5th Amendment doesn't protect your personal diary --- and it doesn't --- and it doesn't prevent the government from wiretapping your phone

You're interpretation is flat out wrong. Let me quote a few sections for you:

> nor shall be compelled in any criminal case to be a witness against himself

Seizing someone's electronic communications certainly does make a great witness against oneself, especially when the communications were seized without a warrant.

> nor be deprived of life, liberty, or property, without due process of law

Again, seizing communications en masse without a warrant for each communication is expressly against even the most rootementary interpretation of the 5th Amendment. There is no due process of law here. In fact, we know some people are in prison thanks to Parallel Construction - the exact opposite of due process.

[tptacek]

This is such a weird argument. You clearly can be compelled to produce private documents as evidence. A private document you wrote is in the exact same sense self-testimony. I don't doubt that you can conjure a first-principles argument that the law says otherwise, but the reality you'll end up in won't be the one we share now.

I got snarky because of the "sir" in the parent comment. I SAY GOOD DAY TO YOU, SIR.

Totally fair game to ding me for doing that, though.

[Alupis]

> You clearly can be compelled to produce private documents as evidence.

You are correct - but only via due process (court order/warrant, etc..).

What we have here is not due process - but rather systematic bulk collection and inspection of all electronic communications from every citizen. These private communications are then sifted through, looking for anything of interest... and if found, we then (sometimes) go get a warrant to retro-actively wiretap your communications. That's not legal, but it's what's going on.

Regarding full-device encryption - it's the same thing. You need a warrant to compel me to turn over my device. No law makes it legal for the government to "hack" into your device remotely and inspect it's contents (unless you have a specific warrant). If the individual refuses to turn over the device or decrypt it, it's no different than someone refusing to turn over a written letter... and we have punishments for these actions. We don't need to ban encryption for this, we already have mechanisms in place to handle these situations.

[tptacek]

Again, who are you arguing with? Abuses of systematic collection are a great reason to support universal encryption. Certainly, it's the primary reason I support it.

[Alupis]

> Again, who are you arguing with?

Why do you keep trying to shut this down? I'm clearly arguing against points you have made in the quotes cited in my post.

> Abuses of systematic collection are a great reason to support universal encryption. Certainly, it's the primary reason I support it.

I think we finally agree here. I just don't know why you appear to keep making counter arguments if this is how you truly feel.

[tptacek]

Because systematic collection isn't the only, or even the most important, issue at stake in the "going dark" debate.