At 02:13 PM 4/21/96 -0700, Steve Reid wrote:

No need to be so defensive, Mr. Bell... I didn't say that samples used to detect drugs are OK under the constitution. I just said that, IMNALO, samples taken for identification have always been okay. The samples taken to detect unauthorized molecules are the exception to the identification rule I noted. I do agree that requiring people to provide such samples to detect illegal substances (as I said, a recent development) is wrong.

I wasn't trying to score points for either side of the debate, I was just pointing out that _before_the_war_on_drugs_, the samples listed in the previous post were used exclusively for identification.

And _my_ point was that before about 1900 or so, the various "identification" (your distinction, not mine) examples that were listed by the SC were not demanded, and not regularly demanded. I came to what I considered (and still consider) a reasonable conclusion: The Constitution does not support (and certainly does not OBVIOUSLY support) exceptions based on identification principles. I don't doubt that somebody could have presented this (the "identification" aspect) as intended to sound like a reasonable exception; the issue is whether this is just an opportunistic justification or whether there is some logical basis for this position. That latter conclusion would have been stronger if there had been no exceptions to the 5th amendment other than identification techniques. But the "straw that broke the camel's back" principle is at work here: Having added the drug-testing issues to the mix, the fig leaf has dimished in size, and it becomes harder (and, in fact, impossible) to explain why the natural interpretation of a document written in 1783 could be so CONVEEEEENIENTLY re-interpreted so as to allow exceptions which were did not become technologically "interesting" for 150-200 more years. The most obvious interpretation is that whenever an investigative technology that the cops would like to use appears, and if that technology appears to be proscribed by some Constitutional protection, the Constitution is automatically re-interpreted to allow it anyway. The exceptions occur only when the new technique is so unreliable (polygraph, for instance) that certainty of test results can't be guaranteed. This is particularly true when the technique has just as much, if not more, ability to cause an acquittal as a conviction. The reason this subject is NOT noise is that the issue of providing decrypt keys is going to be a more and more important issue, and it is vital that faulty precedents be replaced by good ones. It would be very useful to be able to prove that the only reason these "exceptions" are considered exceptions is that somebody thought they'd be a useful investigative technique, and was pissed when it was denied to him. Jim Bell jimbell@pacifier.com