🚀 go-pugleaf

leichter@zodiac.rutgers.edu writes:
>
>Sigh.  It would really help if people had some understanding of law and
>history before pontificating about them.  I chose Mr. Ellison's message to
>reply to because it's right at hand, but he's hardly alone.
>
>Here's the exact text of the Fourth Amendment:
>
>	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.
>
>Note that the word "privacy" does not occur in this Amendment.  In fact, I
>don't believe it occurs anywhere in the Constitution or in any Amendment.


   AMENDMENT I

   Congress shall make no law respecting an establishment of religion,
   or prohibiting the free exercise thereof; or abridging the freedom of
   speech, or of the press; or the right of the people peaceably to
   assemble, and to petition the Government for a redress of
   grievances.

As extended by the 14th Amendment, this means that no government body
in the country may restrict what we can say. That means that if I
choose to say a group of numbers that happen to be in code, the
government has no right to stop me. The courts have made an exception
for obscenity, but as no one can construe uninterpretable numbers as
obscene since the do not appeal to the prurient interest (part of the
definition of obscenity) I doubt that this applies. Lest you believe
that computer communications are not covered, the first amenement has
been held in numerous cases to hold for electronic media and so-called
"symbolic speech".

   AMENDMENT IX

   The enumeration in the Constitution, of certain rights, shall not
   be construed to deny or disparage others retained by the people.

This means, Mr. Leichter, that the mere fact that you find no right to
privacy in the constitution does not mean that we have no
constitutional right to privacy. The ninth amendment means that the
mere fact that the framers could not enumerate every possible
disgusting horrible invasion that the engineers of government might
devise some day does not mean that we have no protection against said
machinations.

   AMENDMENT X

   The powers not delegated to the United States by the Constitution,
   nor prohibited by it to the States, are reserved to the States
   respectively, or to the people.

This means that since the US Government was not explicitly granted the
right under the constitution to compel people to divulge their secret
keys that the government has no such right. This amendment has been
ignored since FDR threatened to destroy the supreme court following
the overturning of numerous bits of new deal legislation because they
were blatently unconstitutional. However, the mere fact that it is
ignored does not make it less a part of our constitution.

>So, what is the Constitutional philosophy on the right to keep our "persons,
>houses, papers, and effects" secure?  Read the words.  This is not, and has
>never been, an absolute right.  It's a right subject to violation upon
>"probable cause", appropriately supported.  NOTHING here supports a right to
>communicate messages or store data in a way that cannot be reached by the
>government, given an appropriate warrant.

However, nothing in it requires that citizens make it easy in advance
of being presented with a warrant for government officials to access
any of your possessions. Indeed, you are under no obligation
whatsoever to aid in a search -- you are only under an obligation not
to interfere with the officers conducting it. If you wish, you may
remain mute when they ask where anything is -- it comes from your
right against self incrimination. They can smash the place to bits,
but you are under no obligation to aid them in their search.

This is a basic principle of the common law, as enshrined in our
protection against self incrimination, vis...

   AMENDMENT V

   No person shall be held to answer for a capital, or otherwise
   infamous crime, unless on a presentment or indictment of a Grand Jury,
   except in cases arising in the land or naval forces, or in the militia,
   when in actual service in time of war or public danger; nor shall any
   person be subject for the same offense to be twice put in jeopardy of
   life or limb; nor shall be compelled in any criminal case to be a
   witness against himself, nor be deprived of life, liberty, or property,
   without due process of law; nor shall private property be taken for
   public use without just compensation.

No person is obligated to be a witness against himself. You may be
compelled to hand over possessions, but you can't be compelled in
court to given any testimonial evidence against yourself. You cannot,
for instance, be compelled to say what your encryption keys are,
although if a search of your premises reveals them, too bad.

>Most of the arguments against any government role in cryptography are based
>on the principle that Constitutional protections are not enough; messages
>should be protected no matter what the government does.  This is totally
>outside the Western legal tradition, or any other legal tradition I'm aware
>of.

Nor is there anything in the western legal tradition that obligates
people to aid in their own prosecution. 

There is no obligation in our legal system, for instance, to leave
evidence of your crimes. You cannot be charged with killing a person
and using gloves to keep fingerprints off the evidence -- you can only
be charged with the murder. We do not obligate our criminals to make
the lives of the prosecutors easy.

Furthermore, there is nothing in the western legal tradition that
requires that people arrange their lives so as to make the governments
job in prosecuting them for potential crimes easier. There is no
obligation, for instance, to maintain a detailed log for the police of
all your movements so you can be tracked if you ever commit a crime,
although I'm sure the police would love that. There is no obligation
to conduct all your conversations in front of government officials so
that they can be used against you later on to permit your prosecution.
There is no obligation for all people in the country to send their
blood samples in to the government so that those of us who MIGHT
commit a crime later on and who MIGHT leave blood droplets at the
scene may be caught, which is truly a near analogy to what we are
being asked to do by Dr. Denning. There is also no obligation to sign
letters you send so that the censors reading them can know who sent
them. I'm sure all these things might make prosecution easier. They
might save one or two lives at some point. They are also likely
unconstitutional. In short, there is no precedent whatsoever for this
kind of disgusting shenanigans being played with the legal traditions
of our country.

>Try getting caught with duplicate sets of books some time.  You WILL reveal
>your income to the government so that it can adequately determine the taxes
>you owe.  You WILL provide enough information about your sources of income
>to satisfy the government.  Don't like it?  Afraid that revealing this much
>would give away criminal behavior on your part?  Or because you just think
>that it's your private business?  Well, that's really too bad for you.

Actually, the precedents surrounding the tax protestor Irwin Schiff
seem pretty conclusive that you are under no obligation to testify as
to your income -- but that if you don't tell them, they can assess you
for any amount that they think is reasonable and you are then
obligated to prove that they are wrong. The government cannot compell
testimony from people against themselves.  Its an ancient and accepted
part of the common law traditions on which our nation was founded and
it is enshrined in our constitution.
--
Perry Metzger		pmetzger@shearson.com
--
"They can have my RSA key when they pry it from my cold dead fingers."
Libertarian Party info: Phone 1-800-682-1776, E-Mail 345-5647@mcimail.com