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Exactly. If you think the government should be able to gain access to your house, filing cabinet, etc- with a warrant, why not your phone as well?

The issue with the Snowden revelations and similiar programs is that there is no warrant or court process.

The only way to enforce a requirement that the government should be able to access your device / encrypted message / computer, is to require that software be written to follow government-mandated protocols which will allow the access and decryption.

IMO, that's clearly a 1st amendment violation.

You mean like https://en.wikipedia.org/wiki/Communications_Assistance_for_... ?

It's possible that you'll design a safe that the government cannot get into without destroying the contents. We say that the government can do their best to get into that safe if they have a warrant.

There is no requirement that they be able to access the content (building the safe is not illegal), but there is a procedure that lets them try under appropriate conditions. What the parent posters have been talking about is a permission structure like that where law enforcement can try their best. Doesn't force anyone to write software in a particular way.

How do you enforce this:

> On a case-by-case basis, with proper court process, requiring an individual to provide a passcode or thumbprint to unlock a device could assist law enforcement in obtaining critical evidence without undermining the security or privacy of the broader population.

I can write a piece of messaging software which writes one of the following two in a log, without exception: (1) hash of /dev/urandom (2) message history with passphrase encryption

If the government comes to me and asks for my passphrase and I say "I don't have one", how can they prove that I have a passphrase and am in contempt of any lawful order? The only actual way to enforce this is to make it illegal to write software which does (1).

My point is: the reason the quoted parts in the top-level post are ugly is because search warrants should already be sufficient, unless you want to crack down on the ability of citizens to do the above.

What I'm more frightful of, is not knowingly possessing this data but having it planted on me, e.g. a plaintext crypto header with random data, stenographically encoded into a video I'm streaming, stored in my browser cache, and this being discovered when the TSA-equivalent of a country I'm visiting surreptiously scans my HDD (because unless they hide it from me I'd much rather refuse, sit in a booth with angry men for 24 hours and get sent back to my home country).

If not decrypting what looks like random bytes (because that's what good encryption looks like) becomes punishable in a country, it's no longer safe to visit that country with any digital data carriers.

None of those Fourth Amendment concerns are at play. What is at stake are the limits of the Fifth Amendment. I think there's more here than just that, but that's the more interesting part.... and may well be "ugly".

If you can be forced to divulge something that you know in order to convict yourself, where exactly do you draw the line? Yes, revealing a password that you know isn't exactly forced confession, but there are a lot of stops along that path that are short of being forced to confess and yet probably prejudicial against yourself. So what is the right being defended and are the current boundaries appropriate?

> revealing a password that you know isn't exactly forced confession

Revealing a password reveals that you knew the password. It's admitting to having access to the device.

There is also the obvious problem when you don't know the password. It's manifestly unreasonable to punish someone for not doing something they can't actually do.

But if not knowing is unconditionally a valid excuse then this is all a just hair splitting exercise to determine how defendants will phrase the refusal. And if it's only conditionally a valid excuse then you're back to forcing someone to testify as to why they don't know the password (e.g. admitting "that's not my phone").

People forget their passwords all the time, even after using them regularly for long periods of time. Unless we want to risk keeping people in prison their whole lives in order to compel information they simply don't have, wouldn't a simple 'I forgot' have to suffice, even if it's for a device proven to belong to the suspect?

There's a difference between a filing cabinet and your brain.

> why not your phone as well

They can do whatever they want to my phone with a warrant. What they can't do is force me against my will to testify as to the contents of the phone. Be very careful not to conflate those two activities.

> If you think the government should be able to gain access to your house, filing cabinet, etc- with a warrant, why not your phone as well?

They can gain physical access to the phone, just like they can gain physical access to a safe; they can also compel the production of physical keys or security tokens, if any. They can't compel you to provide information from your mind, such as the passphrase to a phone.

"Tell us where the body is buried, or we'll hold you in contempt of court."

Being compelled to produce any information from your mind to incriminate yourself is not acceptable.

I think we're in complete agreement here.

Why is information from your mind, like your phone passphrase, significantly different from other information to your mind, like the location of a physical key?

> Why is information from your mind, like your phone passphrase, significantly different from other information to your mind, like the location of a physical key?

In the USA because of the Fifth Amendment which protects individuals from being forced to incriminate themselves. [1]

Other (civilised) countries have similar laws.

Which makes something like the UK law which forces an individual to reveal their private key, at conflict.

Specifically about my own country, The Netherlands recently adopted a revision of the computer criminality law (it being v3 of it). It is called the 'hack back law' because one major part of it is it allows the police to hack suspects. That's not all it is about though. Of note, the part scrapped was the one about a suspect being forced to hand over their private key.

[1] https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...

That doesn't answer my question. Why is giving one piece of remembered information that leads to incriminating evidence treated differently from another?

> They can't compel you to provide information from your mind, such as the passphrase to a phone.

In the UK, they can [1]

[1] https://falkvinge.net/2012/07/12/in-the-uk-you-will-go-to-ja...

An encrypted device is more similar to a diary written in code.

Can they compel you to tell them how to decode your diary, or force you to produce a decoded copy of your diary?

They can access your filing cabinet, but if they don't understand what's written on the papers inside, can they compel you to decode the full meaning of all papers so that they can evaluate it? They can have access to physical stuff, but not to information that they are not privy to.

How about puzzles for a metaphor?

The police can seize my puzzles, but they can't compell me to tell them the solution, even if they can't solve it themselves.

It does miss the effects (potentially incriminating content being decrypted), and maybe it's a bit too silly.

> The issue with the Snowden revelations and similiar programs is that there is no warrant or court process.

For Americans, yes, or rather that the NSA meddles with internal US affairs at all. For the rest of the world, the issue is of privacy, economic espionage, and having no way to vote in the US to get rid of this practice. Apart from Merkel. She only cared her personal phone was tapped. Which is exactly what I expect the NSA to do: target specific high priority targets. Including heads of nation states.

But, economic espionage and mass surveillance? No.

Because they're claiming that they have the right to extract information that (allegedly, not even certainly) exists inside the defendant's head, i.e. to force a testimony.

There's a very obvious difference between saying "We're allowed to look inside your documents and records" and "We're allowed to force you to give up any fact we claim you know on pain of contempt charges". Even worse is the fact that people might not actually remember encryption keys (it's happened to me several times), which would mean you could be kept in jail indefinitely for forgetting the password to some trivial volume. I know I've used Truecrypt to keep copies of business receipts and subsequently forgotten the password years later; imagine if the government had erroneously accused me of having illegal materials in that encrypted volume.

Many countries already have these laws on the books, so you can see how it plays out in the rest of the world. In the case of your phone it's pretty unlikely you will not know the code.

Describe metadata analysis without giant dragnet.

The beef in the metadata analysis comes with mass surveillance. Getting warrant to see where suspect sends emails is not in question. There is little analysis needed there.

Very much can be done on a case-by-case basis: Get proper warrant, ask telecom provider to provide call logs for customer under investigation. Analyse. Ask for call records for other customers that seems to be interesting based on initial study (if necessary after getting extended warrant.)

None of this needs a constant omnipresent dragnet ir secret courts interpreting secret laws in secret ways.

I'd go so far as to say it is dangerous to spread the idea that this is necessary.

Your comment implies a vast private-sector dragnet, obtainable by subpoena.

You mean Google/Gmail and Facebook? That ought to do for at least 90% of all cases.

No it means detailed phone bills.

I see where you're coming from, but a few observations:

- The judicial branch is wading through this question now (sometimes allowing compulsion, often not); it's not a question for Congress to answer, as appealing as it might be to them to help us redefine our Constitutional rights.

- We're in the analogy danger zone, but would you say that your phone is more like a safe or more like an extension of your mind? What do you think your answer will be 10 years from now? 20 years from now?

- Dragnet vs. compelled disclosure is a false dichotomy. The NSA and friends will continue their collection of data + metadata at scale, regardless of the outcome here.

> The judicial branch is wading through this question now (sometimes allowing compulsion, often not); it's not a question for Congress to answer, as appealing as it might be to them to help us redefine our Constitutional rights.

IANAL, but from what I recall, the entire point of the legislative branch is to create, remove, and re-define constitutional rights. The judicial affirms what they are, and the executive violates them. (Sorry, is that too on-the-nose?)

This is pretty close, but I would phrase it as the legislative branch gets to write the "fine print" of constitutional rights. Often the constitution is vague enough that the legislature has a large amount of creative license; sometimes though particular rights are given by the constitution or an amendment, in which case changing it in a large way, or removing it, requires another amendment - or else such attempted changes may be struck down by judicial challenge.

The full US process could be summed as: The Constitution defines some rights and laws. Congress is empowered to grant additional rights and make additional laws. Congress also implements and defines rights and laws contained in the Constitution. If a citizen feels the Constitution has been violated by Congress, then the judicial system (headed by the Supreme Court) decides whether to invalidate the law(s) or not. If a majority of citizens wish to change the Constitution, then there is an amendment process.

IANAL either, not even an American, but I know there's a very objective process for the US legislative to change the constitution, which is hard by design.

The Gp's criticism is based on the unstated assumption that they'll try to bypass that process.

The legislative branch can not create laws that change the definition of what rights are constitutionally protected or interpreted through the normal legislative process. The SCOTUS in fact can strike down laws that are passed but are deemed in violation of the US constitution. There is a process to change the constitution, but it is hard by design.

Very much more like a safe. "Extension of the mind" feels like nerd babble.

If you insist on this line of thought there is actually a close analogue that has been around for centuries: the diary.

People have been writing down their private, even intimate thoughts in diaries, and nobody is surprised that diaries can be seized and used as evidence in a court of law.

And if you wrote said diary in code a la an encrypted phone or laptop, you absolutely could not be compelled to decode it.

If we could ever scan your neurons and determine data from them would you be ok with that? While I can't imagine them pulling out whole thoughts I can imagine them extracting phone numbers as an example. Sure that might be 100-200-500 years in the future. I have no idea but unless you believe the data in your brain is stored in your sole it seems reasonable to believe someday there could be a device that could dump your brain the same way we can dump memory from other devices and that certain pieces of data will be able to be extracted.

Is that the same? Different? Okay? Not okay?

Or how about closer to reality: Memory enhancing chips are already available/in the works (https://www.technologyreview.com/s/513681/memory-implants/) should someone using those be required to allow the government to get a data dump of them?

> If we could ever scan your neurons and determine data from them would you be ok with that?

The premise behind the self-incrimination privilege is that coerced confessions are not just unfair, they are unreliable. If you can scan neurons directly (and reliably), that rationale doesn't apply.

And in any case, I don't see the slippery slope here. Your phone and a diary are both external things where you voluntarily put information--completely different from scanning your brain.

Both writing and computers are tools for the mind. To the degree that you create a large distinction between them, you privilege people who don't need tools over those who do.

(I don't really see much difference between scanning neurons and scanning phones. I don't see that one can use phones without involuntarily putting information into them. As hard as I try to ensure my phone's Chrome browser doesn't store my browsing history, Google works just as hard to ensure that it does.)

(PS: on the topic of a bunch of people from the government scanning your neurons looking for stored thoughts: it's a horrifying world I want no part of, because such power would be abused to eliminate dissent. Governments are constructed by people, and people are not to be trusted with that kind of power.)

It's exactly what Congress is for. Compelling a citizen to provide a password is a gray area wrt 5th amendment because the founders didn't foresee it. Judges have to make their best guess. Congress can set the law explicitly.

>would you say that your phone is more like a safe or more like an extension of your mind?

Your phone is an extension of your nervous system.

Marshall McLuhan claimed that all media and technologies were extensions of a human function. Clothes extend the skin, the wheel extends the foot, and electric media extends the central nervous system.

>Men are suddenly nomadic gatherers of knowledge, nomadic as never before, informed as never before, free from fragmentary specialism as never before - but also involved in the total social process as never before, since with electricity we extend our central nervous system globally, instantly, interrelating every human experience.

-Understanding Media, Marshall McLuhan

Re dragnet vs compelled. The difference is I can provide strongest security possible that stops most of that and black hats without trying to get a perfect backdoors right. Then, only only a tiny fraction of users are at risk via that system to organizations their lawyers have a chance against.

just to remind you SWAT was supposed to be case by case. Now they send it by default to destroy your door.

I think you have a point here - all too often there is a creeping escalation of the use of such powers.

Perhaps you are unfamiliar with the 5th Amendment to the U.S. Constitution.

> That's the gold standard to me, not the ugly. I WANT courts to issue warrants against individuals based on a real concrete criminal case.

Then you are not aware of the state of things. Most courts now issue warrants without fact checking, simply based on police reporting info from dubious informers. That's not how it's supposed to work yet they are doing little more than just stamping requests for warrants now.