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Comment by ISL | Hacker News Reader

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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That's an interesting hypothetical for a law school exam, but I don't think any of the Supreme Court would find it very compelling, as it doesn't materially abridge any of those things. People not feeling comfortable with saying things is materially different than actually restricting them from saying them.

EDIT: I wholeheartedly disagree with restricting E2E and believe in freedom of speech as strongly as one can believe in any explicitly enumerated right, I just don't agree the text of the First Amendment covers this, and it's hard for me to imagine any of SCOTUS coming up with an argument supporting it.

I would argue that freedom of speech includes the freedom to say things that look like absolute gibberish to the surveillance apparatus. Whether they contain a coded message is irrelevant.

You could argue that, but does US constitutional jurisprudence support that argument?

If US constitutional jurisprudence, in the eyes of our highest officials, supports the argument that corporate money spent politically is speech, then I hope they'd agree that a random-looking sequence of on and off states transmitted through some physical medium with the intention of one or more recipients gleaning meaning from the output is also a kind of speech. I'm definitely not a lawyer, though.

I don't understand how the two are related, can you clarify? What does corporate spending on political campaigns have to do with encryption?

I just mean if they use a broad definition of "speech", including a corporation spending money, I subjectively feel like that definition should also encompass sending text or symbols which appear to be random or encrypted. There is no relation between the two other than that I think if money is speech, pure information, in any form, should also be considered protected speech, unless there's a copyright on the information. Similarly, I think things like burning a flag, or sending someone a painting, also should be (and are?) considered speech.

Yep, my point when asking you to clarify was to see whether you were making this argument: "the Supreme Court will let basically anything crazy count as free speech, so why not this?" It seems like indeed you were.

But Citizens United doesn't rely on a broad interpretation of freedom of speech at all. It relies on a broad interpretation of freedom of association. Supporting various political views is "speech" by any possible understanding -- that's not broad at all. The main "innovation" of Citizens United is that when people form associations (like corporations) they retain certain rights, such as freedom of speech.

A better analogy would be if we already all agreed that individuals have the right to send encrypted messages, and we were discussing whether corporations retained the same rights. Then you'd have a point, bringing up Citizens United. But when discussing whether people have some underlying right at all, it doesn't seem relevant.

That would be an excellent argument to make in the issue spotter! That said, restricting E2E at a vendor level probably wouldn't be seen as infringing at the individual level - ie restricting E2E software doesn't restrict the ability to send gibberish containing a coded message any more than restricting an ink that (somehow) doubled as a plastic explosive.

> restricting E2E at a vendor level probably wouldn't be seen as infringing at the individual level

Would the Citizens United case apply hear? I'm thinking about corporate personhood arguments.

Citizens United did not establish corporate personhood, and is entirely unrelated here.

I love how when you apply basic logic the abuse taking place is shown for what it is.

Of course, people will point to X law or precedent and say "see that justifies it'. They don't see how that law should be invalid by the very logic that the state created for itself.

It might be worth while reading wikipedia on "Chilling Effect". The Supreme Court has already agreed with the gpp some 70 years ago now.

https://en.wikipedia.org/wiki/Chilling_effect

The term chilling effect has been in use in the United States since as early as 1950.[8] The United States Supreme Court first refers to the "chilling effect" in the context of the United States Constitution in Wieman v. Updegraff in 1952.[9]

The Chilling Effect was thoroughly covered in my Constitutional Law class during my year in law school. I understand that this is what any argument for First Amendment protection of E2E would ultimately rely on, but you generally have to actually need to measure or "plainly observe" said effect. Since most people couldn't tell you the difference between end to end encryption and encryption in transit (I can only sort of do it myself), it's really difficult to argue that restricting E2E encryption would actually have a chilling effect.

Agree. This is more of a 4th-ammendment "The right of the people to be secure...against unreasonable searches and seizures" issue.

It would be like federally outlawing clothes to make sure no one in America has a gun. Also, and aside from the whole premise being unconstitutional, shallow, & generally kind of silly, enforcement would be just about impossible.

I think it was Schneier's blog that argued or highlighted that it's simultaneously a Fourth and Fifth Amendment issue. On Fourth, they're trying to search through your digital property. At same time, getting your password requires you to speak something that might get you charged for a crime. If it's encrypted messages, those are your speech as well in digital form.

Different judges are looking at it in different ways. I say assume they can search it or hold you in contempt for the password if they intercept or find it. Then, you shift the goal post to them not being able to do that.

If I was to print out an encrypted message, and publish it in a book, would you agree that the government has a right to ban that book?

coded messages were critical to the revolutionaries and early founders of the US, so it's odd that a constitutionalist would simply ignore that historical precedent, especially interpreting the early amendments that were written at the time.

Maybe you'd be better off citing the Third Amendment. Judicial interpretation being that it implies a right to privacy.

So if I establish that my religion believes in end to end encryption and that in order to practice this religion, all communications shall be end to end encrypted and all services will be presented to the congregation using such means... I'm protected by the constitution?

No, that's not your sincerely held belief. But you're overthinking it. This is covered by freedom of speech.

But one has freedom of speech without encryption. I'm having a hard time for freedom of speach applies in this case?

I am from the UK but my understanding is that you cant incriminate yourself which would likely be an issue here?

I suspect you could find reasoning in the 1st and 4th amendment that protect encryption. Freedom of Speech would apply to encrypted to or unencrypted communications because you're free to speak in whatever format you choose. It doesn't say that encrypted speech is excluded, so it can only be assumed that it is included.

But you’re assuming that encrypted speech only contains its decrypted meaning or even that its decrypted version means anything. Maybe I want to speak the encrypted text. Maybe an encrypted message is what I want to communicate. Imagine an encryption/coding scheme where the cipher-text looks like normal speech but doesn’t mean what it seems like it means... hopefully you get the idea.

I still don't see how in this encryption scheme you could make the case it isn't allowed by the 1st amendment.

Because you wouldn't be free to speak encrypted messages?

Freedom of speech includes, as a subset, the right to speak in encrypted speech.

  Wf4SyiBipCvf1+w4LbZVmvTQTknq4OtvI+QV60KAPL88U2BbTvHfPM7TRn0Nl+0kTvI+zjMZdTVp7fDaexcgRoGSOZl1TUsoJOrlygrvCuQlmMCx0GHgBo5i8/jnf4kXSyL8RCIUsiS9A86DNBmcdmTqnVdIykIbVdKZkR+e4df7bq40fBTpF2EvEhG8d9UycGaCK3ULNl4qS+zXtjT/MPTDK2zPZJKon3851a9PboFqhY1jlrI6iL0Z7/LT6+iffhUHNtF0wu/hMKKYr4HkN6iUra8HlpqjFnZ8N3aBpN62hT3zdaEIZg8rqkiHcM9bFmMubaVZZgdqtJuEQK3yYY+Iuj6K/7a7eZLqBWU0DK6lOY/BJIKeg0hRlCnTCk3D2uuWeJCX1SzEdH2jw+RVI2ywd9cIw7Bw/GSnR5WLuxHJSrU55768w0rBfYDFQGfIB/RCLZlyu3eID/v7LJWSUA==

The First Amendment, ostensibly AES-encrypted via https://www.gillmeister-software.com/online-tools/text/encry... using the password 'speech'

Indeed. You could take the analogy a step further in that if you add the government as an additional party in the conversation, it's compelled speech because they're forcing you to communicate differently.

The first amendment has been ruled to allow restrictions on the time, place, and manner of speech, as long as those restrictions are content neutral.

>This is covered by freedom of speech

I think it's a bit presumptuous to go that far. You may believe that it is, but it's hardly an open and shut case, and I'm pretty sure the SC may have something to add to the discussion should it get that far.

I was making a clarification, but this is a more or less open forum where people share their opinions. Do I really need to put a disclaimer before every post? Also, the Supreme Court may very well weigh in and may very well be wrong on the law.

>but this is a more or less open forum where people share their opinions. Do I really need to put a disclaimer before every post?

Not sure I understand; of course it's fine to share your opinion. My opinion is that yours is far too simplistic and completely ignores the nuances that always appear in constitutional cases such as these.

>Also, the Supreme Court may very well weigh in and may very well be wrong on the law.

Sure... but I'd put more stock in their opinion vs your own.

How do you know it's not their sincerely held belief? Lots of people have concerns about the government listening in on their sermons and about dark forces changing holy messages to trick people into doing and believing the wrong things.

How do I know that the newly invented religious tenet that the OP doesn't practice doesn't spring from a sincerely held belief?

What basis do you have that the religious tenet is newly invented? Even if it were, what's the basis to uphold that something newly invented is not a sincerely held belief?

OP is clearly posing a hypothetical. And courts absolutely look to the amount of time and frequency with which one practices a tenet of their religion as evidence of sincerity. OP might be sincere, but a court would be unlikely to use that as evidence to justify, for example, a wrongful termination claim.

The Supreme Court just needs to decide it's not sincerely held.

How old does my religions book have to be to count as sincere? If I indoctrinate my children to believe this, does it count? Is there a certain head count where it becomes sincere?

Depends on the book and the context. Generally yes. Short answer no, long answer yes.

I urge you to search for "sincerely held religious beliefs" as there are an abundance of educational documents and case law related to this subject and this format will probably not do it justice.

It certainly is my sincerely held belief that E2E communication is necessary. If necessary, a schism on Pastafarianism can be created.

Thank God for the constitution; I expect any reasonable court to toss Trump out on his ear if he tries this in about a minute.

Trump has assigned his judges so you may be in for a surprise.

Trump has assigned judges? Source?

https://en.wikipedia.org/wiki/List_of_federal_judges_appoint...

That is far different from him having assigned the judges that will hear this case. And if you're thinking that it will wind up at the Supreme Court (which is likely), well, Trump appointed 2 out of 9. So "Trump has assigned his judges" still seems like a mis-characterization of the situation.

Anyone that thinks the SCOTUS, as it is currently comprised, will allow for a ban on encryption has no idea what the legal doctrine of The Federalist Society is, nor what it means to be an American conservative. This is the most libertarian court we've had in decades.

Talking about judges as being "assigned" is both inaccurate and betrays an ignorance of the American system.

People seem to be forgetting that cryptographic algorithms were export restricted for a VERY long time.

Trump certainly can't block Americans from selling cryptographic algorithims (or anything which implements those algorithms) if the consumer is also american.

But preventing the communication of those algorithms to foreign nationals is something that was done for several decades.

I think its a terrible thing for him to try to do, but he would have some legal grounds to stand on, provided the restrictions are related to foreign nationals only.

If my memory serves correctly, it was protected right up until Phil Zimmerman circumvented them by writing a book containing the source code for PGP and winning the case based upon the argument that the book was protected by his constitutional right to freedom of speech(?)

Unfortunately, you can't put the cat back in the bag. It's no good putting export restrictions on encryption when the tightest encryption we have at present is already available all round the world.

The law had different purpose, to prevent other countries from obtaining good encryption algorithms. That law didn't forbid developing encryption software abroad and downloading it.

Just like how the courts prevented mass surveillance and illegal authorization of war.

reasonable courts are no longer a given, or even a safe assumption

If the federal government only did those things specifically authorized to it in the Consitution, it would be about 1% of its present size, and nobody would care about national elections.

Correct. Hopefully, we can get closer to that.

I think there is some confusion here regarding a right to free speech vs. the right to any speech. The courts routinely recognize the state's right to limit modes of speech, e.g. vandalism, yelling in a theater, etc. Isn't encrypted speech just another "mode"?

Encrypted speech isn't another mode, in my opinion. You can send encrypted messages in letters, spoken word, or spray paint; that is, encrypted speech is communicated through the same modes as any other speech. The content is what's different.

You need look no further than the very next right (the right of the people to keep and bear arms, shall not be infringed) to understand that these "rights" are rather squishy in practice.

I 100% agree freedom of speech protects encryption, plain as day; I'm justifiably skeptical that a court would see it that way.

If we allow encryption, how do we know that encrypted file doesn't contain AR-15 blueprints or school shooting plans? Think of the children! /s

I just got mt AR-15 blueprints and the gun I printed was 2x more powerful because they came encrypted.

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