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Comment by RcouF1uZ4gsC | Hacker News Reader

This is akin to reporting “Giant asteroid on collision course with earth, many journalists expected to be killed.”

Basically, the article is saying that the EARN IT act would defacto outlaw end-to-end encryption. Thus people could not securely communicate with each other. One group of people affected by this would be journalists trying to securely communicate with sources.

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Focusing on concrete harms is important. In front of the supreme court you want to be able to say "This law is devastating to journalism, a fundamental institution in our democracy." Rather than sounding like a screeching privacy activist to nine nontechnical judges.

I wouldn't care if it were devastating only to the current press, it is beyond awful anyway. If it kills privacy that's completely other matter. And SCOTUS judges are anything but stupid, they know what privacy is and how important it is. They maybe don't know technical details of elliptic curve encryption algorithms, but one doesn't need those to understand what's going on, the debate about privacy vs. safety wasn't born yesterday and the judges heard it all already. So no need to pander to anybody, and no need to misrepresent the issue to the public.

> I wouldn't care if it were devastating only to the current press, it is beyond awful anyway

You're confusing the 24/7 TV infotainment with proper journalism. TV anchors peddling stories optimized to maximum viewership for the purpose of advertising is just one aspect to it, and it would be the least hurt by this. Real investigative journalism would be hit much harder.

If 'real journalism' wasn't long in its grave. Remember '60 minutes'? All rigged to make the reporters look like geniuses, and slanted to make every poor schlep look like a conspirator.

I'm not confusing anything, I am saying "proper journalism" is not something that is done in the mainstream press now, at least not in the quantities worth talking about. It's an exception rather than the rule. Pretty much nothing in most of the press is optimized for it. So I don't see why anything we do should be optimized for the needs of the press. Privacy is important, but not because the press is special and they need it. It's because we, regular shmoes, need it. If it also helps the press, well, they are people too. But no more people than the rest of us.

No one is saying anyone on the SCOTUS is stupid. In fact, the opposite is the real problem: they are professional legal scholars with a wide knowledge of legal precedent. Applying legal arguments to real life situations often leads to conclusions that people who aren’t judges or lawyers would consider absurd.

That has been the case for the last 250 years and somehow the republic survived that pretty well. Surely there were some absurd SCOTUS decisions, but there were also some absurd laws, absurd executive orders and absurd government actions on all levels. Nothing changed there, SCOTUS haven't become any different than it was and is as capable of handling complexities of life as it ever was. I don't think there's any need to specifically single out journalists as special protected class that have different rights form all other people and need special care from SCOUS who otherwise will be unable to figure out such thing as destroying privacy on the internet.

And the justices will point out that journalism predates end-to-end encryption and investigative journalism used phones and mail and in person meetings quite effectively.

I don't think that's an effective counter argument. Sourcing journalism in the 21st century means living and working with 21st century technology. It's not reasonable or realistic to tell journalists to go back to using the mail if they don't like their communications being intercepted.

You may not find it reasonable, but you're responding to somebody reasoning it, an argument like this is actually pretty common at court. “it seems kinda crazy” is a losing argument.

And while that's true, adversaries have significantly more resources at their disposal now. So the "old" ways of phones, mail, and in person meetings are no longer secure.

The US has laws against snooping on the mail - so before encryption, it was illegal for the government to even try to snoop (search and seizure). The only reason this is even an issue now is that digital information is not being legally treated in the same way as physical information. If we had laws to prevent the government from ever opening your email, that would be a solution worse than encryption (laws are easier to break than elliptic curves), but it would achieve some of the same goals. However, you will never see the advocates of cleartext laws propose that trade - they don't want the same rules as we had in the 1800s, they want looser rules!

The same ones who are poised to strike off any gun regulations that don't date back to the Revolutionary War, presumably.

And they would be incorrect. End-to-end encryption existed long before journalism. Ciphers have been in use for a very long time. Romans used ciphers to encrypt messages.

That the medium of transmission of the message is different should make no difference.

What it boils down to is whether people are allowed to have private speech or not. Any argument that says I'm not permitted to write an electronic message to you in a way that only you can read is fundamentally equivalent to one that argues I cannot speak to you where someone else is unable to record.

I can't tell you which part of the U.S. Constitution pertains, but I'm fairly certain the Founding Fathers had a robust belief in the right to maintain a private life separate from a public life. Having zero separation between public and private was a more primitive state in ancient Athens, for example. One of the advances of Republican Democracy as a form of government was to say that a) there is a distinction, and b) the government should be restricted from interfering with private life, so long as your actions didn't damage someone else's freedom.

The Founding Fathers explicitly denounced legal mechanisms that could be used to encroach on things like a mother expressing her opinions to a child, or teaching them religion. The trade off for this freedom was to make it harder for the government to police. It was a trade off gladly accepted, because it was well and viscerally understood what the other side of that equation looks like.

We seem to have forgotten that.

I believe that, with respect to government, the separation of private and public life you’re referring to falls squarely under the 4th amendment.

The open question to me is how we can maintain this separation with respect to employers. The nature of employment as changed dramatically since the early days of the republic, and I don’t believe the Founding Fathers could have conceived of the type and size of employers we have today.

That employers have abused their power over employees to control their private lives is a matter of historical fact (see the Ford Sociological Department: https://jalopnik.com/when-henry-fords-benevolent-secret-poli...). Clearly, we need legal protections for workers to prevent these types of abuses of power.

> And the justices will point out that journalism predates end-to-end encryption

When do you think cryptography and end-to-end encryption specifically was invented? I think you're likely to be thousands of years out.

Only one of the justices (Sotomayor) regularly appeals to specific examples. The first amendment free speech clause would likely be the most effective argument, followed by the fifth and fourth amendments.

I've wondered for a long time whether the second amendment also has anything to say about cryptography.

I have heard that argument made, but it seems to be a peculiar result of the government classifying private key encryption as a weapon to keep it secret during the cold war.

I think that the founding fathers would have believed people had a right to encryption, but that it was covered by the tenth amendment or first amendment. I believe that at least some of the founding fathers did use codes and invisible inks. I can't imagine any of them would have seen codes as weapons.

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Not sure which part is about cryptography. Unless you consider algorithms to be "arms", but then what isn't?

> Unless you consider algorithms to be "arms"

As the Arms Export Control Act did.

> but then what isn't?

Things not named in the United States Munitions List.

That's not a functional definition, that's "government does what it wants" definition. No point in having Constitution and Bill of Rights then - the government can put whatever freedoms it wants on United States Freedoms List and remove whatever it wants from there anytime it wants to. If there's nothing outside contemporary whim of the government and any government decision is as legitimate as another - then what's the point of discussing constitutional amendments and rights anyway? Rights are what the government says they are, and that's it.

If you reduce all legislative action to "whatever it wants ... anytime it wants to" then there's no point in discussing any of this; they can just pass an amendment to the Constitution.

You're right, it's not a common-sense definition, it's a "rule of law" definition. If the government decides to regulate encryption as arms, then it must deal with the consequences that it is admitting that encryption is arms, and that the constitutional limits on how it how it regulates arms apply to how it regulates encryption. Individual laws form a system, and even though parts of the government can change individual laws, they must still obey the system as a whole; that's what the rule of law is about.

The second amendment has long been acknowledged to not allow blanket and unlimited access to weapons, the US Government could pretty trivially counter-argue that end-to-end encryption is military grade and beyond the needs of the consumers - if that tactic was taken it'd be difficult to defend the necessity of consumers to have access to that level of encryption in a technical manner that'd hold sway on the supreme court.

To be honest the second amendment, for all the out-sized media attention it receives - is a rather ineffective and unimportant portion of the Bill of Rights - falling quite far down any reasonable ranking.... Still more important than the third though - especially since the US routinely ignores the spirit of it.

That said amendments 1 & 4 are probably quite relevant, especially 4 - this law, while covering a novel subject not previously assumed, aims to specifically deprive persons of their rights to private communication including in cases where just cause cannot be established.

> To be honest the second amendment, for all the out-sized media attention it receives - is a rather ineffective and unimportant portion of the Bill of Rights - falling quite far down any reasonable ranking

Particularly since most of the US's peer countries manage to get along quite well without anything like it.

Why on earth is this downvoted?

There are many “freedom” indices[1] that measure the rights afforded to individuals in each country. These indices are published and maintained by groups all along the political spectrum. They all include things like due process and free speech but I’ve yet to come across one that gives weight to an individual’s access to weapons.

The “Human Freedom Index”[2] published by the ultra-libertarian Koch-funded Cato Institute doesn’t even include it.

[1] https://en.m.wikipedia.org/wiki/List_of_freedom_indices

[2] PDF page 24/numbered page 18 https://www.fraserinstitute.org/sites/default/files/human-fr...

The parent said "most of the US's peer countries manage to get along quite well without anything like it", which is a bit vague, but you have to think about how all the peer countries have done in the last 240 years. Remember that the USA's peers from 1776 weren't Sweden, Germany, and England, they would have been the Latin American countries, and other colonies like India. The USA has definitely done better than any of its peers from 1776.

The USA went from being a backwater that produced cotton and tobacco to being the pre-eminent global economic and military power, and it did this while avoiding totalitarianism and (devastating) war on the home front (i.e. WWi and WWii did little damage to the continental USA). Even the countries that started off far ahead of the USA (Germany, England, Sweden, etc.) have had much worse journeys over the past 240 years.

I disagree with this on two major points:

I don't think that social evolution is an individual journey for countries. England as a nation might have a founding date around 927 though there have been some pretty major upheavals since then - it isn't fair to measure modern day America a success by comparing it to 1120 England - I think that as a global community all but the newest countries are on mostly even footing with those more aged and ancient countries being at someone of a disadvantage due to having much less solid bases in their constitutions/founding documents - more recent organized countries have been able to learn from history and create founding documents that allow them to have a more stable society... though many of those are in extremely volatile areas of the world.

Canada is like a hundred years younger than the US and doing a fair bit better and Australia founded a mere twelve years after the US is clearly within the peer range and is pretty close to the top of that list with New Zealand (founded slightly more recently than that in 1840 which puts it closer to US unification following the civil war) is usually really close to the top of most of these rankings.

Additionally, I'm not certain the validity of some of the points mentioned above:

In terms of the US's journey it gets the advantage of geography and the same advantage Canada and New Zealand received - it wasn't a theater of war during WWI & WWII, Australia actually suffered catastrophically during WWI with massive numbers of casualties received when participating in the Asia Minor theater (Gallipoli is part of the Australian cultural memory) and in WWII Papau New Guinea was a territory (albeit a relatively autonomous one) of Australia and was a heavily contested theater.

In terms of economy, the USA wasn't a cotton churning backwater on founding, it had a strong plantation based economy but as the world industrialized so did America. Britain & Germany definitely take the cake in terms of the most extreme economic transformations but America was on the upper end of the curve - it did quite well in industrialization building a strong power that it transformed into global power as the other colonial powers collapsed.

Lastly, I don't know if the US really is the pre-eminent power of the globe - certainly in terms of military it's on the top of the pile... but economically - dutch and british service industries move a lot of money around and, the ordering you didn't mention, quality of life for the citizenry, is one category America is really hurting in at this point with endemic obesity, poor healthcare and extremely poor education.

The feeling that the legacy press class would suffer under this legislation is probably a selling point of the bill, for much of the public.

Reminds me of my elementary school French language teachers, when I would ask them why somebody would want to learn French in Anglo Canada, and they say "you can get a government job!".

The core problem with this is that it concretely undermines the basic privacy of every American.

The fear is that journalists will focus on the one concern that affects them. Politicians see that and give journalists an exemption. Everyone else is still screwed.

Ah, but much like backdoors in encryption, a single exemption is all that is needed.

If journalists are exempt, suddenly we all become journalists.

Presumably, the exemption would come with a definition, which not all of us can meet.

In a world where anyone can publish, you'd be hard pressed to come up with a definition that wasn't accessible to most anyone.

You're assuming the definition would be broad enough to cover "anyone." Maybe it includes something like "belongs to a recognized news organization," or some such. What are your press credentials? What if you were no longer "recognized"?

If it said "belongs to a recognized news org" I'll bet the Washington Post would figure out a way to allow you to affiliate yourself with them so you can use E2EE.

Or someone could start a news org and get "recognized" and then allow anyone to affiliate.

People are creative. They'll find a workaround.

> Washington Post

Only if Jeff Bezos wants us to be "affiliated" with them. Same goes for every other media outlet, and their respective billionaire owners.

When your "workaround" depends on the benevolence of billionaires, it isn't a very good workaround.

Who said anything about benevolent billionaires?

I could start a "news" organization and allow anyone to affiliate. We'd publish articles on our online newspaper once a week. Maybe hire a correspondent to be part of the White House press pool.

You can start a “news” organization, but would it be recognized? You keep saying “people are clever,” but somehow don’t seem to realize that legislators and judges are people, too. And, they’re the ones with the power here.

Journalist centered articles far too often have a bad habit of that sort of selfish attitude of thinking protections should be limited to them by some sort of credential and not a "universal press" despite the obvious backfire potential involved with it - or their sources for that matter.

Hell even the article is lukewarm criticism instead of speaking truth to power and saying that it is bullshit and so is the purported goal. If you want to stop child molesters you stop the molestors first as opposed to the byproducts. And even though the byproducts do their own damage cracking down on the bulletin boards is completely removed from being helpful.

The way things are going in the US today, I would not be surprised if hindering the free press was an intended effect of this law, rather than a byproduct.

Highlighting the potential issues for journalists makes sense, as there you can consider it an unconstitutional violation of the right to a free press.

Thiugh I feel it would also be a violation of a combination of the right to free speech and the Tenth Amendment, that line isn't as clear cut.

Honest question: Do you think the EARN IT act is NOT specially about ending E2EE?

Can you please explain why this isn't a big problem to you?

That doesn't seem to be what was said.

They are saying it is a big problem. A problem much bigger than the already awful "journalists will have hard time protecting sources".

He's just noting how the article is focusing entirely on how this bill will affect journalists in particular rather than literally everybody.

That's understood. That's obviously a huge problem, but isn't it worth pointing out one of the bigger issues of the bill? There are many, many people who agree with this bill who may not have thought about this specific issue. It's worth pointing out how the ends that supposedly justify the means, can have major, major faults.

The weakening of structures that allow political journalists to expose corruption is not a small issue and should be discussed on its own.

In other words, I'm asking: "Why does this topic not deserve its own conversation?"

>That's understood. That's obviously a huge problem, but isn't it worth pointing out one of the bigger issues of the bill?

That's not "one of the bigger issues" of the bill. It's not even that interesting as an issue -- journalists have other ways to talk to sources. Deep Throat didn't use "end to end encryption".

But not allowing end to end encryption affects all of society (e.g. everybody's text messages, chat, and voice calls), not just some specific use case of a specific line of work.

One specific example doesn't make the whole set of journalists who need to communicate with others over the internet. Consider that during a pandemic, people are limited in travel, and over the internet is the de facto way of communication.

Do you think that a system like this won't be abused in targeting journalists trying to expose corruption? Surely that's a big issue.

You’re ignoring that E2EE is how anonymous communication is done now, including communicating with journalists.

I'm not ignoring anything. Communications of the masses use electronic media and will continue to do so, and those will be compromised if E2EE is forbidden. Masses aren't gonna stop talking and writing to each other digitally.

Journalists however, having a special need to protect their sources, and being aware of a potential lack of E2EE can always find other ways - similar to what they used to hide their sources before E2EE, when their phones could be tapped, etc, including intermediaries, face to face meetings, etc.

Journalists might be hurt from killing E2EE, but theirs is less of an issue (and they can take precautions). The big issue is with masses lacking E2EE.

Which demographic do you think sources come from: "journalists" or "the masses"?

> Journalists however, having a special need to protect their sources, and being aware of a potential lack of E2EE can always find other ways - similar to what they used to hide their sources before E2EE, when their phones could be tapped, etc, including intermediaries, face to face meetings, etc.

Except now there's stingray towers, scraped social media profiles, phone metadata, databases of license plate reader data, Palantir, CCTV with facial recognition, Clearview AI, and an army of private tech companies attempting to create detailed profiles of everyone on the internet and selling that information to god knows what malicious actors/governments.

As technology has progressed, journalists have accordingly updated their methods for protecting sources. E2EE is one of the technologies in the 20th/21st century that is essential to that end.

Will journalists really lose access to their sources, or will they simply abandon US-based companies for secure communication?

If a potential source is too afraid to reach out, did that source even exist in the first place?

I think the impact is certainly concerning, but I doubt that it's likely that most sources are currently even using E2E encryption in the first place I'm not trying to minimize this, either: the EARN IT act is a huge problem. I suppose my point is that you can't get rid of good encryption, but you can prevent US companies from using good encryption which is simply going to push people offshore.

This could even have totally perverse impacts: suppose that China can read your messages, but all you care about is that your provider is not hosted in the US?

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