Why Are We Fighting the Crypto Wars Again?

> "[t]he 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."

This should be amended to include data but from a legal standpoint it should stand that information/communications that are stored/accessed locally on a personal computer fall under 'effects'.

Backdooring into your computer without prior authorization and/or the justification backed by a warrant is illegal and a violation of the rights of US citizens.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The reality is the more you pass the keys to this sort of thing around the greater the risks.

EDIT:

Since I'm rate limited...

You do realize the Freedom of Speech was literally created to enable political dissent that used to involve criminal acts?

http://www.lectlaw.com/files/con01.htm

> The inhabitants of the North American colonies did not have a legal right to express opposition to the British government that ruled them. Nonetheless, throughout the late 1700s, these early Americans did voice their discontent with the Crown. For example, they strongly denounced the British parliament's enactment of a series of taxes to pay off a large national debt that England had incurred in its Seven Years War with France. In newspaper articles, pamphlets and through boycotts, the colonists raised what would become their battle cry: "No taxation without representation!" And in 1773, the people of the Massachusetts Bay Colony demonstrated their outrage at the tax on tea in a dramatic act of civil disobedience: the Boston Tea Party.

> The colonies' most celebrated seditious libel prosecution was that of John Peter Zenger in 1735. Zenger, publisher of the 'New York Weekly Journal', had printed a series of scathing criticisms of New York's colonial governor. Although the law was against Zenger, a jury found him not guilty -- in effect, nullifying the law and expressing both the jurors' contempt for British rule and their support for a free and unfettered press. After Zenger's acquittal, the British authorities abandoned seditious libel prosecutions in the colonies, having concluded that such prosecutions were no longer an effective tool of repression.

The electronic data is a lot richer and more personal than just documents. It's more like an extension of your brain, than an extension of your home.

It also features live incoming personal and private data from friends, family, and other contacts who may be put in danger if their information (location, for example) is exposed to unsavory people. (Note, governments can and do sometimes have unsavory people working alongside the good people.)

To the extent that encryption protects all this information, yes it should be considered as much a right as the right to have private thoughts, which seems to be fairly widely accepted.

Unfortunately, most of them still don't.

You're right that "everyone has a device in their hands that they can touch, and know is related to this" but most of them still don't understand the significance of it -- if they are even aware of it at all!

My girlfriend is, I think, fairly representative of the "younger generation", for example. She's 21, not really that "techy" (despite having an iPad and iPhone), and is constantly using Facebook, Snapchat, and probably a handful of other apps that I've never even heard of. The first she became aware of any of this was after Tim Cook's "A Message to Our Customers". That evening, she was sitting on the couch on her phone and asked me, "Did you see this message thing from Apple?" My initial response was, "How did you hear about it?". "It's all over Facebook."

She knows, now, that it's an important issue to me. I've explained it to her as much as she cared to listen and she's seen and asked about the multitude of EFF stickers on my laptops (after seeing someone on TV with some of the same stickers).

She doesn't really care that much, though, and, as far as I know, pretty much none of her friends (all within a couple years of her age) do either. As long as they get what they want, they're content.

It doesn't affect them directly and so it gets none of their attention. Most of them have other, more important (to them) things that do affect them directly and, because of that, are much more relevant to their daily lives.

Black people are literally shot dead, on camera, for no reason by the police and no-one gives a shit. People (mostly, but not exclusively, black ones) have their lives effectively ended by drug policy - policy that's only now being tweaked around the edges with limited leniency towards users of 1 specific drug. You seriously think there'll be any meaningful, effective outcry when encryption is banned?

Suck it up; it's coming. I reckon a)4 years, b) the next big terrorist attack to hit a major western country or c) any attack to hit any country where encryption provides any protection at all to the alleged attackers, whichever comes first.

The other important point is that since the 90s, the snoops have been getting steadily better in spite of crypto becoming more widely used. Or at least that's true of the NSA; in the Apple case, it seems to me that the FBI is saying that they suck at tradecraft. Whether or not that's true is a different question.

Similarly, most records of importance to my heirs or a court case aren't solely held by me. Purchases are recorded by at least myself and the vendor, potentially with an intermediary like my CC or bank.

My tax records are retained by both myself and the IRS. In the case of a gov't case against me, they have those records. In the case of heirs needing access, they can petition the government if I failed to provide other access for some reason.

The malware example, this already happens. It can happen with or without cryptography being legal or pervasive.

> How do we reconcile wanting data to be available (free) with also wanting everything encrypted for posteriority --do we just forgo that treasure trove of data?

Who wants everything encrypted? I cannot think of a single person that's not at a very extreme ideological position that would argue for that.

Law states that banks have to give a notice to heirs when the original owner dies.

"What about discovery in court cases? What if someone comes up with malware which encrypts your data and you have no backup?"

Then you lose all your data. How is that a problem? You ask the bank-government for new credentials. And you learn to make copies for the next time. Not the end of the world.

It's not really that different from loosing your keys, maybe you will have to destroy your old lock and buy a new one.

If you want data available for posterity or for your heirs, you should be able to make it so. Why compel me to do the same if I don't want those things?

Fine, you show me a way we can do that that does not necessarily entail that the "bad guys" (which explicitly includes law enforcement, unless and until its aims shift from "winning cases" to the actual pursuit of, you know, "justice") can access it, too, and maybe we can meaningfully have that discussion.

But, as long as my choices are "keeping everyone out" or "risking the bad guys getting in," I don't see much difficulty in picking my camp.

In the case of tax records (and ignoring that government would have a copy of said records), consider a dispute with the government who claims that a deceased person didn't pay taxes while the heirs claim taxes were paid (obviously a contrived example). If the "proof" is unavailable because the deceased encrypted it, then the result is the same as if the encrypted data never existed. The heirs could say that any random noise is encrypted data that provides proof of payment, but without any way to decrypt (and, arguably, to authenticate it) that random noise into actionable data, any claims the encrypted data contains the necessary "proof" is meaningless.

In other words, it's not the fault of encryption that the heirs have to deal with this beef from the government, but rather the fault of the deceased who encrypted things valuable to the heirs without a way for the heirs to access it (via sharing a key or explicit, chosen key escrow with a third party, etc). We like to say the answer will be legal and political, and it definitely has legal and political influences and impact, but given that the encryption is unbreakable, or the value of the dispute isn't worth the effort to undertake breaking it, we won't be able to legislate math to, uh, "not work".

Even if the government is the trusted entity of last resort and maintains a "legal" way to access encrypted content, there's nothing stopping the deceased in the above contrived example to have encrypted it using an unsanctioned algorithm or not have shared the key with the government, or whathaveyou. Then they die. Not only is the data inaccessible, but the responsible party is dead, and unable to have legal retribution rendered unto them for breaking the law. In this respect, the data is just as good as not having ever existed (which may very well have been the reason the now deceased encrypted it in the first place).

Now they want to be able to ignore the boundaries when it suits them. They naturally will be encrypting their own data.

John Perry Barlow:

"Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

"We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

"Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.

"You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions.

"You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don't exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.

"Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.

"We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.

"We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.

"Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.

"Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion. We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge. Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule. We hope we will be able to build our particular solutions on that basis. But we cannot accept the solutions you are attempting to impose.

"In the United States, you have today created a law, the Telecommunications Reform Act, which repudiates your own Constitution and insults the dreams of Jefferson, Washington, Mill, Madison, DeToqueville, and Brandeis. These dreams must now be born anew in us.

"You are terrified of your own children, since they are natives in a world where you will always be immigrants. Because you fear them, you entrust your bureaucracies with the parental responsibilities you are too cowardly to confront yourselves. In our world, all the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat.

"In China, Germany, France, Russia, Singapore, Italy and the United States, you are trying to ward off the virus of liberty by erecting guard posts at the frontiers of Cyberspace. These may keep out the contagion for a small time, but they will not work in a world that will soon be blanketed in bit-bearing media.

"Your increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world. These laws would declare ideas to be another industrial product, no more noble than pig iron. In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost. The global conveyance of thought no longer requires your factories to accomplish.

"These increasingly hostile and colonial measures place us in the same position as those previous lovers of freedom and self-determination who had to reject the authorities of distant, uninformed powers. We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies. We will spread ourselves across the Planet so that no one can arrest our thoughts.

"We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before.

Davos, Switzerland February 8, 1996"

Edit: AFAIK it isn't yet established enough to setup a full range of your average first world consumer's products though.