We all like end to end encryption though. In fact, most people call it the pinnacle of crypto done right.
And yet, it completely circumvents any warrants.
And yet, it completely circumvents any warrants.
If the government can't do their job effectively with the presence of strong, pervasive encryption, that's their problem. The right of the people to be "secure in their persons, houses, papers and effects" is non-negotiable (at least in the US, barring a Constitutional amendment.)
They have the right to serve a warrant for my phone, and I have the right to hand them an encrypted phone. There may be circumstances where, legally, the government can demand a password, or pay for an exploit, and that's fair enough. But I don't believe any government does or should have the right to demand that encryption not exist, or that it should be fundamentally broken.
This is patently absurd.
US courts have, time and time again, upheld limits on the 4th amendment pertaining to the risk that evidence might be destroyed. The textbook example of this can be found in the so-called "motor vehicle exception". This exception holds that because of the inherent mobility of automobiles, there is exigent cause for a warrantless search, since evidence may trivially be destroyed, obfuscated or hidden.
>The right of the people to be "secure in their persons, houses, papers and effects" is non-negotiable (at least in the US, barring a Constitutional amendment.)
The 4th amendment protects against unreasonable search and seizure, not warrantless search and seizure. Granted, a warrant often (but not always) renders a search/seizure reasonable, but a warrant granted absent probable cause is invalid.
Further, there are other well-established cases in which warrants are not required for searches and seizures. Three such examples are (1) Terry stops (2) the "in hot pursuit" exception (3) the "plain view" exception [0].
Hell, the text even states it plain as day:
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.
The only mention of warrants is that they are only valid if issued based on probable cause, supported by oath or affirmation, and are specific.
>They have the right to serve a warrant for my phone, and I have the right to hand them an encrypted phone. There may be circumstances where, legally, the government can demand a password, or pay for an exploit, and that's fair enough. But I don't believe any government does or should have the right to demand that encryption not exist, or that it should be fundamentally broken.
I agree with one caveat: while I would hope that phone-decryption would be subject to a warrant, it's unclear whether or not this is constitutionally required. We may well see a "mobile electronics exception" appear. You and I might not agree that it's a good idea, but prima facie, there is a legal basis for such a statute.
[0] http://nationalparalegal.edu/conLawCrimProc_Public/Protectio...
No, it just means the warrant must target one of the ends.
An analogy:
Gmail is like having a safe at your bank, if the police want something in it, they get a warrant to search your safe. E2E Crypto is like having a safe at home, if they want something in it, they get a warrant to search your house.
So I wouldn't say it circumvents any warrants, it just changes who is served said warrant.
Ergo, the FBI-unlocking-dead-guy's-iPhone thing, and the key-disclosure thing.
My machine doesn't, but I do, unless I am willing to face the consequences of being in contempt of court.
If your argument is that they're willing to face the consequences in order to perpetrate their greater crime, then (respectfully) you've missed two crucial points:
1. US legal tradition wholeheartedly rejects the goal of absolute security. Better to suffer a few terrorist attacks than live in a surveillance state (yes, yes ... I know... not the point...)
2. Deterrence, in general, doesn't work against self-sacrificing adversaries. Even if crypto were outlawed, terrorists would still use end-to-end crypto, and refuse to comply with a court order to decrypt.
The great issue here is the total unbreakability of crypto when compared to e.g. a safe. Before this, all we had was human memory which is very limited.