At 11:19 AM -0400 10/11/96, Duncan Frissell wrote:
At 06:17 AM 10/11/96 -0700, Declan McCullagh wrote:
Yep, seems right to me. While I share some part of your position on the undesirability of wiretapping, Uni's remarks about it being "firmly entrenched" in the minds of L.E. and Capitol Hill are quite on-target.
Few here in DC believe in an absolute right to privacy.
In actual fact, most public officials profess (if not practice) a belief in an 'absolute right to privacy.' That is, they profess opposition to torture. They believe that coercion for testimony should be limited to two years imprisonment (or less). There is no *official* pro-torture lobby in America (though in practice torture does occur).
We've already established that they believe in an absolute right to privacy, we're just arguing over how far beyond the brain that extends. And since we control our brains and we control our i/o we can probably expand that zone of privacy in practice.
I believe any arguments based on a "right to privacy" are shaky. One will find no such right clearly enumerated in the Constitution, though various things seem to implicity reference such a right ("secure in one's papers," "quartering troops," and the various First Amendment issues). Judge Bork--whatever you may think of him--was probably correct in pointing out that there just is no specific "right to privacy," at least insofar as protecting one against various laws. (To wit, one argument for abortion rights was a "right to privacy"--Bork believed this to be ungrounded in actual Constitutional law...and it's pretty clear that one cannot, say, use illegal drugs on the grounds that there's a "right to privacy.") I'm of course just a layman, not a law professor or scholar. But I feel it best that we not invoke a "right to privacy" to protect our crypto abilities, when such a "right" apparently does not exist. However, certain things which _look_ like a "right to privacy" do exist: * the aforementioned Fourth Amendment freedom from unlawful searches and seizures, requirements for warrants, and "secure in one's papers." This would pretty much preclude a requirement, for example, that all houses have curtains removed (or removable by police surveillance teams) so as to "monitor" what is going on inside houses. (I've been using the analogy of Clipper and key escrow to window curtains that can be made transparent when the government wants them to be transparent, and probably without the residents even knowing that the "transparency mode" has been remotely enabled. Ordinary people, like my family members, immediately understand this and are shocked. I then elaborate that it's as if the government could secrety gain access to diaries, letters, television habits, etc. without the occupant of a house even knowing it. This usually sours them on the USG rhetoric about the need to fight crime with key escrow tools.) * the freedom to speak as one wishes without government permission or sanction, save in limited situations covered by specific laws (a big loophole, I grant you) says to me that I can converse in Ubangi, in Hindi, in Pig Latin, in RC4, or in Tim's Secret Language without anybody in government telling me I must converse in a language _they_ can understand. (The loopholes are for the usual things: espionage, sedition, suborning perjury, extortion, and various other litigatable examples. A well-trodden area of discussion on this and other lists. But in none of these examples is there support for a government ability to tell citizen-units they may not use the language of their choice in communicating with others, in writing diaries for their own use, etc. (The "English-only" laws have to do with communicating with authorities, tax agencies, schools, etc. I'm not saying I support them, but they don't affect Alice and Bob communicating in Urdu or Prakelitine.)) * The "freedom of association" provisions also provide a kind of support for a generalized "right to privacy." I think Ronald Dworkin's new book on law has discussions of this "right to privacy" issue. I plan to read it soon. Using this "right to privacy" line of reasoning must be done very carefully. I would rather use First Amendment arguments if the USG tries to tell me that I may only write my diaries in a key escrow language form, or tries to tell Alice and Bob that they may only use a specified form of communication between themselves. "Crypto as speech" seems well on its way toward being established (e.g., Judge Patel's ruling, and the Supremes should get the case one of these years). --Tim May "The government announcement is disastrous," said Jim Bidzos,.."We warned IBM that the National Security Agency would try to twist their technology." [NYT, 1996-10-02] We got computers, we're tapping phone lines, I know that that ain't allowed. ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1,257,787-1 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."