[ds9]

Re (2), the idea that LE is entitled to have comms decrypted has never been "the spirit of the law" until very recent legislation. In the days of "alligator clip on the wire", the law allowed the police only to intercept whatever the content was, in the form it was in - it did not compel the people speaking to explain their "code words", or to speak in a language the officers could understand.

It is precisely this fact which makes the current "going dark" argument an example of overreaching and mendacious, bad-faith deceptive rhetoric: encryption does not take away any powers the police formerly had; to the contrary, the demand for decryption goes far beyond traditional wiretapping principles.

[betterunix]

I am not saying that I agree with the idea, but one could make an argument that modern cryptography is different from speaking with code words, and that the spirit of wiretapping laws extends to forced decryption. Using code words only barely qualifies as "encryption" at all -- it is certainly not going to meet basic semantic security definitions. Further, codewords are not something is built into any communications equipment, not automated, and computed in one's head -- quite different from TLS or OTR.

One could argue (as the DoJ does) that the spirit of wiretapping law is that the police can, with the approval of a court, temporarily violate a specific suspect's privacy in an electronic communication system. Hence if the system automatically encrypt's the suspect's messages, the police should be able to obtain plaintexts. Phone companies are not exempted from wiretapping requirements when they multiplex phone calls, despite the fact that that is a technical measure that (as a side effect) impedes wiretapping.

Again, this is not an argument I agree with. For one, wiretapping laws do not, as you pointed out, require a suspect to participate in any way in the wiretapping. For another, there is a component of modern encryption that does (or should) occur in a suspect's mind, much like the computation of code words. It is also true that in general, wiretapping laws have expanded far more rapidly than communications technologies have hampered police investigations; the ability of the citizens to have a private conversation is still "catching up."

[ds9]

Actually you are right and I overstated. This has been the distinction in the recent laws, if the provider as opposed to the interlocutors can decrypt it is required.

It is a challenge to build a system that encrypts as part of a service (rather than users encrypting at the endpoints), yet prevents the service operater being able to provide plaintext. In this situation the 5th amendment does not avail, but I think there is a strong argument for the service provider having an option to shut down (like Leveson/Lavabit) rather than cooperate - not on the grounds Leveson argued, but rather by a right to avoid being used as an instrument of fraud. But we digress from the main topic here.