🚀 go-pugleaf

In article <7553@transfer.stratus.com>, cme@ellisun.sw.stratus.com
(Carl Ellison) writes:
| ... During the Bork hearings, people kept asking how he stood on the
| constitutional right to privacy.  I kept thinking about abortion and
| contraception at the time -- privacy of consenting adults to have protected
| sex and privacy of a woman and her doctor do decide what she does with her
| own body.
| 
| It never occurred to me that plain vanilla privacy (my sealed envelopes to
| my buddy in CA) might be threatened -- but it's probably the same thing.
| 
| As far as I could tell from the debate, it's *not clear* that there is a
| right to privacy in this country.  We know there isn't one in the UK, or so
| I'm told, and much of our law was inherited from England....

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.
(Anyone have the text of the Constitution on line?  It would be really handy
for such discussions.)  A "right to privacy" has been inferred by some judges
from the general philosophy of the Constitution, and from the Ninth and Tenth
Amendments, which reserve unspecified, unmentioned rights and powers to the
people and the states.  The exact extent of such a "right to privacy" has
never been clarified, but it is clearly seen as growing out of the same
philosophy as the rest of the 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.  There is NO precedent for such a
right.  The closest you can come are some very specific protections, such as
the protection against self incrimination (a protection adopted, by the way,
not out of any concern for privacy but to help prevent the use of torture or
other means of pressuring confessions - for which it was eventually seen to
be insufficient, leading to the exclusionary rule), the rules of spousal
immunity (to protect "the sanctity of the family", a person cannot be
compelled to testify against his or her spouse; in some cases, cannot even
do so voluntarily.  These rules are under attack today and are on their way
out as holdovers from a bygone era, intended to protect women by keeping them
away from the harsh world of the courts - and really protecting men by ruling
out their wive's testimony against them.), and protection of discussions with
one's lawyer or the clergy.  Note that your "private conversation" with a
friend is anything but:  A court can compel your friend to reveal it.  Even
your consultations with your doctor are generally not immune from a warrant.

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.  I think you'd have to search long and hard for a judge who would rule
that you had a right to keep information secret even against a properly
executed warrant.  In fact, the courts tend to safeguard their right to compel
testimony aggressively, as they view it as fundamental to their ability to
conduct trials.  Those "sealed envelopes to your buddy in CA" can be opened
under court order, or your buddy can be given the choice of telling what was
in them or sitting in jail.  You never had some of the "rights" you seem to
think you had.

| And if you're caught with the machinery for hiding bits, that's evidence
| that you're a crook, unless you can prove that you've registered with Big
| Brother like a good boy or girl....

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.

							-- Jerry