🚀 go-pugleaf

watt-alan@net.yale.edu (Alan Watt) writes:

>The Constitution is silent on the subject of cyphers.  However, a reasonable

And if it's silent, then the staes or congress can make laws regarding
cyphers, unless those laws abridge are also deemed to abridge other
rights by the courts, and even then it might be dicey. ( after all libel
laws abridge the freedom of the press, but have been declared
consitutional)
>argument barring government restriction on encryption technology could be made
>under the protection against forced self-incrimination.

What would be more likely to happen is that the application of the laws
in certain specific cases would fall under various constitutional
sections. IE, a law on encryption registration would itself be
probably be constitutional, but but forcing someone to give up his key
in order to obtain evidence against him would probably fall under the
costitutional protection, while forcing him to give up the key to gather
evidence against his son (say) or business partner might well not. 
And if they could somehow demonstrate to the satisfaction of the court (
and circumstantial evidence is after all admissable in court) that those
strings of random digets were the result of an unregistered encryption,
they would probably win. (Remember people have been hung for murder with
no airtight proof that they did it.No reasonable doubt is enough.)
                                      ---------                                       
>I think Mr. Baldwin's point is you can send a letter full of gibberish,
>and not be compelled to translate it for the authorities.  The legislation
>you refer to derives directly from the Constitutional provisions barring
>unreasonable search&seizure, self-incrimination, etc., etc.  It is clear
>that you can keep any information in your head, and not be compelled to
>reveal it.  If you keep information on paper or a computer disk, the law
>permits the state to seize them as evidence, but it does not compel you
>to cooperate with the state in making a case against yourself.

>Further, If we're going to discuss what the framers might have meant based
>on the technology known at the time, then "unbreakable" codes were freely
>available to anyone.  It wasn't until the work done by Friedman
>prior to WW-II that there was an effective attack on so-called "di-alphabetic
>cyphers", which were known going back (I think) to the Crusades.

Yes and they did not say that "no laws abridging the right to hold
secrets may be passed." Since the mails may be searched, and since
others can be forced to reveal secrets that you have told them I see no
barrier in the constitution to either encryption registration laws or to
the use of material encrypted by an illegal ( under those putative laws)
key as evidence in and of itself of guilt ( after all burglary tools in
and of themselves are admissable evidence, and can be considered as
crimes in themselves. When does a crowbar become a burglary tool and
when is it a legal carpentry tool?) When is encrypted material criminal
and when a legitimate secret?  Presumably registration will in and of
itself remove the presumption that the possesion of encrypted material is evidence of
wrongdoing.

sorry to go on, but this is just to point out that the constitution will
not in and of itself prevent registration laws. Pointing out that those
registration laws are stupid, are unworkable, will put American
companies at a competitive disadvantage, etc may do so. Ie, it's in the
political not the consitutional/legal arena that the fight will have to
take place, and constitutional arguments will undoubtedly be worse than
useless in that political fight, and will also probably fail as a
fallback position.

>If you're going to argue that the same activity sheds Constitutional
>protection when it is carried out with new technology, then freedom of
>the press is only granted for goose-quill manuscripts and cold-set type
>in hand presses.

Hardly, the result is protected, not the means. But equally, since the means
are independent of the result, the technolgy can be regulated in all
aspects except where they infringe in a fundamental way on the
constitutionally priveleged activities. (Many aspects of printing
presses can be regulated as long as those regulations do not in
themselves abridge the freedom of the press- eg, the FCC ownership of
the press and radio TV station regulations.)