🚀 go-pugleaf

Timothy May posts a thoughtful message suggesting that the government
wishes (for what IT sees as perfectly good national security or crime
prevention reasons) to infringe on our right to be secure in our speech
and our papers by requiring key registration. Some have suggested these
government agencies might wish to go even further and outlaw the use
of cryptography by the general public.

It would seem to me that the fundamental issue is a Consitutional one.
Thus one would hope to make a civil liberties organization (the E.F.F.? the
ACLU?) well aware of this issue NOW, and attempt to secure a commitment
that they would move rapidly to challenge the constitutionality of any
such laws.

Stay with me here.  There's a long history of government agencies
avoiding constitutional tests in cases where they MIGHT lose, and the
loss would affect other activities they are currently involved in, or
would redefine power relations. Thus both the White House and the
Congress have avoided constitutional tests on such issues as
sequestering.

If the Justice Department, or the NSA, or the CIA knew that any
attempt to legislate "universal phone tapping" or crypto key
registration would produce an immediate constitutional test, they
might be deterred from pushing those issues, since a loss might mean
that many activities they currently engage in might also be found
illegal by such a Supreme Court decision.

I'll bet, for example, that there has not been a Court test of NSA's
right to intercept conversations between U.S. citizens and foreign
nationals. I'll bet, for example, that there has not been a Court
test of mail covers. I'll bet, for example, that there has not been a
Court test of the right of Presidents to order assasinations (now
discontinued), in peacetime, in the interest of "national security".

I've been reading a lot about the issue of whether foreigners in the U.S.
are protected by the Constitution. The "immigrant rights" community has
been making a strong case that they are. I don't know if they are right or
not, but if they are, then wouldn't employees of, say, the CIA who bribe
foreign officials on U.S. soil be on questionable ground (if they did such
things)? There is probably a huge area of activity that currently assists
our Government in counter-espionage, and in crime prevention (both
laudable activities) in the gray zone. I don't think, if it were put to
them, that officials would welcome either a Constitutional test or the
attendant publicity.

Something to think about.


-- 
David Sternlight
(pgp 2.0 and ripem public keys available on request)