Germany: New government plans 'right to encryption'
tutanota.com
tutanota.com
[0] https://blog.fefe.de/?ts=9f60b12e
[1] https://www.ccc.de/de/updates/2021/ccc-formulierungshilfe-re...
(both in German)
(Disclosure: I volunteer in a local CCC chapter, mostly in public relations.)
I sometime think it was an HFA who coined the phrase, "if you want the job done properly, do it yourself"! It explains so much.
2) "Durchwinken" takes an accusative object as in this example.
"Ich winke dir" is valid without "zu", but depending on where you live, unusual. "Ich habe dir gewunken" sounds less strange already.
Akkusativ is jemanden oder etwas.
Dativ is jemandem oder etwas.
"At this point I should perhaps also state clearly: The politicians who adopt other lobbyists' pre-formulated drafts are lazy villains. Those who wave through our pre-formulated drafts are well-informed and highly intelligent people of honor!1!!"
Nice.
This is another great thing. It is simply unethical to hoard vulnerabilities, as this will eventually backfire[0]
> On top that all future security legislation will be subject to an evaluation by a panel of independent experts who have to look into issues with any potential restrictions on freedom.
I really hope this will be people from the CCC.
[0]: https://www.theregister.com/2020/10/28/nsa_backdoor_wyden/
Now the government that is obsessed with making sure everyone thinks only approved things is going to codify a right to encryption and prohibit state authorities (Is there a 5+1 eyes workaround prohibition) from building in or maintaining vulnerabilities?
Maybe this really is just a bone for the peasants that will fool them into feeling like they have rights, while the Ol' 5+1 Eye Switcheroo is used to keep vulnerabilities and compromise encryption anyways.
Do you mean "free speech"? Here in germany have free speech, except for denying the holocaust (And this makes really sense, as this is simply wrong)
Another example is speech used to commit fraud or extortion. Were your profitable lies to exploit the vulnerable based on a genuine belief, or did you have criminal intent? The law will have to decide, and the situation will not always be clear, and often it comes down to determining intent.
In the case of holocaust denial, in Germany the potential harm of allowing it is seen as more genocide, so they've calibrated their free speech laws in respect of that. But there's never an exact place to draw the line; every legal system is going to have to make such judgment calls.
Codifying truth into law is quite unusual and seems like a bad idea to me. But then prosecuting people for hurling insults also seems like a bad idea to me - I guess I'm just thoroughly American.
> In the Hamburg court, she insisted the status of Auschwitz as a place of death is "not historically proven" and is "only a belief".
I think she deserved her 10 months in prison.
What do you mean by this word? I’ve seen it used as a political meme, but the usage always makes it seem like the supposed victim has some kind of entitlement to be a widely admired public figure regardless of what they say or do, without regard to the fleeting nature of fame and the fickleness of public admiration.
Ok, so you don't have free speech.
[1]: https://en.wikipedia.org/w/index.php?title=Hate_speech&oldid...
Socially, yes, of course there are views that will get you ostracized to some extent. But that's merely the consequence of freedom of association.
The only thing I'm aware of here that I would consider a true infringement of freedom of speech is our obscenity laws. SCOTUS has (sadly) upheld at least some of them.
Good. Now play the free speech game in an iterated manner where there exist a chance that a Nazi party comes to power and that likelihood is being lowered by a making holocaust denial illegal. From history you should now that there is no free expression under Nazis and that it takes them losing a world war to oust them (unlike communist regimes which collapse easier).
Does the US model really have free speech if it allows a nazi party getting to power in the future?
That is the paradox of tolerance and is what people learned from the fate of Weimar and what people incorporated into democratic constitutions made after 45.
The "paradox of tolerance" is not a paradox at all when one contemplates the difference between speech and action. Tolerating intolerant speech, no matter how extreme, is not a problem. Tolerating intolerant actions is where tolerance breaks down.
All your text is doing is explaining why it's limited.
It is nearly impossible to speak about sexual harassment - because the perpetrator can sue you for intruding his private life.
More generally it is basically impossible to say anything negative about someone if you can't prove it true - it is considered slander. By contrast in the U.S. as far as I know it's up to whoever accuses you of slander to prove that what you say is untrue.
That creates a whole large area where you can speak freely about someone while not being able to accuse them legally before the court - in Germany that would either fall into "slander" bucket (if what you say has public significance but you can't prove it) or "private life" bucket (if what you say has allegedly no public significance even if you can prove it true).
Certain depictions of violence are also considered to inherently violate human dignity as a whole (“Gewaltdarstellung”). That seems to be why there’s traditionally been so much video game censorship in Germany, like green blood or replacing all characters with robots[2].
There is another aspect regarding the legal situation in German that might be relevant to understand the difference to the US: The US constitution speeks only of the "freedom of speech", while the German consitution (Grundgesetz) goes much more into the detail:
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.
(3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.[2]
As an aside: "teaching" ("Lehre") refers to higher education only, but includes both, teaching in the narrower sense and learning. As a consequence a student at a German university has the right to learn as he or she seems fit and can only be forced to attend a course, if his or her physical presence is really necessary as there is no other way to learn a particular skill. So the presence at laboratory courses or courses focused on discussions can be made mandatory, but not at lectures. (The student must only attent the course exam, if there is one.) Isn't it interesting that a student in Germany has a constitutional right to be an autodidact?
[1] https://en.wikipedia.org/wiki/Insult_(legal) [2] https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.h...
I’m still a mere Ausländer here myself, so I only have a rough sense of it, but can say that every few hundred meters along the streets you can find a gold-coloured paving stone memorialising separate victims, either an individual or a family.
https://www.washingtonpost.com/world/2021/09/09/pimmelgate-g...
Well, technically, there are also a lot of other things you cannot say (like with most states).
Insults, false accusations, hate speech, riot speeches etc.
But interestingly we still also have a blasphemy law, even though it is very soft now, from what it used to be.
At this point, the only way this will ever be enforced is when someone blasphemes the Quran.
16 years of CDU. It's not been contradiction, but good intentions with reliably poor execution by the coalition partner SPD, and the usual CDU SNAFU.
Otherwise we pride ourselves with pretty incompetent intelligence agencies, so please keep your NWO conspiracy narratives to yourself.
I think that is why the person you replied to mentioned that they work together with other intelligence, which is not so much a conspiracy narrative if you've followed this stuff post Snowden.
Also nobody was talking about NWO conspiracies until you brought it up. Projection? :)
I didn't expect the CDU to do anything, but stagnant and corrupt policies. The SPD, however, was merely enabling the CDU for the sake of government "participation". No one but the SPD is at fault for not pushing for their own promises.
> so please keep your NWO conspiracy narratives to yourself.
I welcome them, so please don't selfishly tell people to censor themselves just because you don't like it.
Thanks.
This isn't a contradiction unless you view everything through an American cultural lens. There is no conception of absolute freedom of speech in Germany. The public sphere in Germany is not the Wild West, never has been, never will be and has always been subject to considerations about what is in the public interest. In public you're not just an individual, you're a "Staatsbürger", a citizen of the state, and you have not only privileges but obligations to maintain public life.
Right to your data, your own body, your private communication, your own image, and so forth is part of the private sphere and personal, and as such enjoys much more protection.
If anything, having lived in both the US and Germany, I feel more free in Germany. As an example, Google would not have been able to fire James Damore for his memo here.
"Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government."
https://en.wikipedia.org/wiki/Freedom_of_speech_in_the_Unite...
(Emphasis mine).
Specifically: "The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine,[6] prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government.[7]"
So companies can restrict your speech all day long, as happened with James Damore.
"However, laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.[8]"
But that is not the 1st amendment or general FoS legislation, but specifically employment laws. And employment laws are notoriously employer-friendly and employee-hostile in the US.
a.) Lots of people appear to be doing it:
https://html.duckduckgo.com/html?q=mord%20an%20Oury%20Jalloh
What exactly do you fear the repercussions would be?
b.) Accusations of a crime presented as a fact appear to be "libel per se" in the US, so quite actionable:
https://legal-dictionary.thefreedictionary.com/Criminal+libe...
https://en.wikipedia.org/wiki/Freedom_of_speech_by_country#G...
Which also makes any cybersec company operating in Germany also illegal.
Although, no one has been prosecuted for this, it makes getting insurance impossible…
https://iclg.com/practice-areas/cybersecurity-laws-and-regul...
But the part about hacker-tools applys only for tools that cannot be used legally (basically none) or are explicitly and knowingly made or acquired to be used illegally (as in you explicitly stated you are downloading this tool in order to get into a computer you do not have permission to get into). They have to prove you are not intending to use it legally (like checking your own network or one you were hired to check).
Mapping a network is not an activity exclusive to criminals.
Though, this particular interpretation does make Google Chrome illegal; it has dev tools that can be used for manually sending HTTPS POST requests with forged headers. (It also has XMLHttpRequest, which can be instructed to do what nmap does with relative ease.)
...even if those same buildings can be seen by anyone standing in the street.
It's privacy theater. (Or maybe theatre, because Europe.)
Also, I don't understand the discussion: Why is limiting free speech contradicting privacy efforts? Allowing people to prevent that their house being displayed on the internet is completely independent of stopping people writing racist slurs on the internet.
In Germany it's not about some extremist scalar ideology of freedom or control. You have basic rights and in daily life the rights of people collide.
In the case of Google Street view, there is the right of Google to choose their work (Art. 12 GG) vs. the right for privacy (derived from Art. 2 Abs. 1 GG) of people. Courts then have to follow a defined procedure to weigh those rights against each other. Apparently, it was ruled that the additional effort of blurring does not hinder Google's right to follow its occupation.
In the case of NetzDG (the law which enforces big social platform to delete criminal posts, such as racial slurs, which you probably refer to), you have the right of free speech of the poster (Art. 5 GG) and the right of human dignity of the guy who receives human dignity. Additionally, Art. 5 GG defines boundaries for free speech:
"These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour. (Art. 5 Abs. 2 GG)."
I learned how the constitution works in detail in uni, and I think it's beautiful. To me, this is a recipe to have a healthy democratic society. And a democratic society has to be able to defend itself against anti-democratic, racists. Otherwise, it'll just collapse sooner or later.
As I recall there was no legal obligation from Google to blur houses. They did so to calm this hot-button political topic.
At least back then there was the Panoramafreiheit which basically allowed you to take pictures in any public area without aids(e.g. a ladder or stick). For this reason they had to lower the height of the cameras for Germany to fall under this clause I think. I also think the legal situation changes quite a bit since this was last broadly discussed.
Only in America mass surveillance is a form of "freedom"
It doesn't mean companies whose software the government buys can't do it, right?
They will project the concerns of the civil service and somehow carve out enough special regulations that will all but hollow out any such rights.
I really want to believe that the majority of the coalition parties believe that they are saying, but that's not how politics are made or put into practice.
E.g., after Zimmermann, there was great hope that Germany would be a lot less conservative in it's interior policy, but following interior ministries have not really become much less conservative.
Here's to hope, though - Cheers.
A majority within the coalition does not translate to a majority in the Bundestag, which is what's needed to put any of these many promises and plans into actual action.
That's a common misconception. 80% of the commitments in the previous coalition agreement were fully or partially implemented:
https://www.bertelsmann-stiftung.de/de/unsere-projekte/monit...
For example, Google Translate (always dubious) gives the following*: "The state must also offer the possibility of real encrypted communication". Which may mean either 'e2e communication' or 'e2e communication except government' or even merely 'the state must create an encrypted messaging solution and allow everyone to use it, but nothing else will change' (and no one will actually use it due to scale effects Whatsapp etc. have).
* From Cu3PO42's excellent comment: https://news.ycombinator.com/item?id=29434183
Legislation to the right to encryption would then just follow from it, but having it in the constitution would make it harder for future governments to pass certain kinds of legislation, or if they pass them, the supreme court would declare them inconstitutional.
This should be the goal. In the days of the internet, mass surveillance, nearly eradicated privacy we need a right to have and use strong encryption without any backdoors.
They don't have the necessary majority to make constitutional changes without the CDU, I think. And the CDU is why we can't have nice things.
I remember another German email provider raising this last week: https://mailbox.org/en/post/chat-control-the-latest-eu-plans...
And https://www.patrick-breyer.de/en/posts/messaging-and-chat-co...
Other posts here mentioned it as exaggerated but it sounds pretty detailed there. It worries me a bit because it would instantly move the EU from one of the best on privacy protections to one of the worst in the western world.
But EU law is (while not legally required) most of the time adopted by consensus. I.e. a No by any EU gov can block a bill more or less indefinitely - certainly no one will try to outvote Germany or France on an important bill.
> After being fined €1 million per day by the European Court of Justice, Poland has said that it would remove the disciplinary chamber.
The German Constitution supersedes EU law, especially considering that some parts of it cannot be changed, but the German Constitutional Court has decided to always try to read the Constitution in a way that matches EU law. The only exception is if they believe the EU has gone 'ultra vires', i.e. significantly above their power.
A recent decision by the GCC about policy of the European Central Bank has invoked this exception and has been fairly controversial because of that[0]. This situation has been defused by now, the German government has promised to reign in the GCC.
[0] and also bc some economists disagree with the economic basis of that decision, but that's a topic for another time
If some well known agencies done this, loss of billions of dollars could have been avoided.
"In the future, development contracts will be regularly commissioned as open source, and the software will be made public as a matter of principle. There will be a right to encryption, and the state must also offer the option of genuine encrypted communication."
Personally I have a hard time to trust anything after heart bleed. A very basic attack that caused havoc. It proved that the quality of open source is nowhere close to the promises of OSS. It also tells that the automatic tests are too simple, if there are any. Fact is that a student in any class about the network stack probably already been targeted about far more complex attacks than heart bleed.
Encryption is mandatory for most things in EU. But the quality is difficult to evaluate.
Heartbleed made international headlines, and got fixed very quickly. The equivalent bugs in Mike's Proprietary Encryption Layer are just another Tuesday. Which is better: being able to discover a bug like Heartbleed, or not being able to discover a bug like Heartbleed?
It mostly started becoming relevant in the 90s, back then Germany didn't even have any legislation on that front at all, just a very general paragraph about "computer/information system sabotage" they had to throw at phreakers and other early hackers, for the lack of any other law.
By the late 90s they tried to fix that situation, but as usual, only for the worse; The so called "Hackerparagraphs" were enacted, which literally banned the ownership of "hacking tools", that by legal definition technically even included stuff like a mundane Linux nmap or security tools distributed by the BSI [0].
[0] https://www.tecchannel.de/a/das-bsi-und-202c-der-hackerparag...
https://www.cnbc.com/2021/04/21/german-court-dismisses-legal...
I know there are claims that EU is on the verge of banning E2E, but they seem to be, AFAICS, exaggerated or unfounded.
Here's a story from Mailbox.org which is another German email provider focused on Privacy, just like Tutanota: https://mailbox.org/en/post/chat-control-the-latest-eu-plans...
And here a more detailed site: https://www.patrick-breyer.de/en/posts/messaging-and-chat-co...
Not sure if this is indeed exaggerated or unfounded and I hope it is. I heard it was taken off the agenda but that was more of a "for now", with plans to revisit it next year.
> Controversial hackbacks, i.e., the hacking back of attacks, are rejected as a "means of cyber defense in principle."
Does this mean "hackbacks" are seen as cyber defense and therefore rejected, or that they are refused the name of cyber defense? Or something else? Does this mean there's intention to forbid cyber defense, esp. by govt/army?!? I'm confused by what's attempted to be communicated here. (Also, who's the presumed actor of those "hackbacks" here, govt? private entities? anyone?)
Instead of hacking back, why not try to get your security up to it in the first place.
Scan on Russian and Chinese characters or IP addresses in the code, that such a naïve take so yeah wouldn't be surprised if European leaders would totally go for it. Allies and other actors would totally not fake that as a distraction.
Would be neat if they also mandated that all such software must be in a memory-safe language unless there’s no available alternative or there’s a compelling performance reason or the software is well-established/reviewed by experts in the field and no reasonable alternative exists.
People don't have a right to encryption, or a right to a specific computing environment, or really, a right to anything at all. What people do have is a right to be free of government limitations on the freedom of individuals to run whatever software they want on devices they own.
When you make something a positive right, that means it's something the government has to give you, and a government that can give you rights can take them away.
The American perspective is that people have rights just by virtue of existing, and the state can only illegally and immorality interfere with rights that you always possess, unconditionally, no matter what.
IMHO, the right framing isn't that people have a right to encryption, but that the state has no business interfering with the math people do on their own computers.
This is an incredibly American libertarianish view, and essentially completely unheard of in Europe. The Europeans frame things in terms of positive rights all the time.
All I'm doing is claiming that the American approach leads, in the end, to greater and more permanent personal liberty. I don't have anything against Europeans or their approach --- I just disagree with them on how to form a basis for limitations on state power.
Well, that's just it: Europeans would look to America and claim the same for them. (Specifically with emphasis on "in the end".)
Your life being controlled by huge corporations because the government doesn't stop them from controlling everything doesn't give a lot of people personal liberty.
* The state grants citizens the right to encrypt data
* The state cannot infringe upon the right of people to encrypt data.
These two statements have important differences. Philosophically, the difference is that in the positive rights model, government is the source of rights, and if the government did not exist, you would not have this right. In the negative rights model, the source of rights is man's natural free will, and the government's declaration of rights is an enumeration of an existing right he already had (and yes, I'm conflating negative and natural rights, I apologize, but the point is still true).
It seems pretty obvious that encryption is more accurately a negative right -- if you were the last human on earth, alone in the desert, you would of course have the right to encrypt a message you carve into a stone (who could stop you?).
This is in contrast to a positive right like "the right to housing". The "right to housing" is an entitlement that the government promises they are going to provide to all citizens. All citizens, even those who cannot afford or build one on their own, are given a home if they want one.
It is further clear when you look at what would happen if these two examples were reversed. If government grants the right to encrypt data, then what would happen if there was no government? Do you suddenly stop being able to do encryption? This would make no sense.
Similarly, if you were too weak or lacked the materials to build a house yourself (as the last man alive wandering the desert), nobody would naturally grant it to you. A house does not simply materialize through free will alone.
This suggests to me without a doubt that the right to encryption should be considered a negative right (and you should certainly believe this too). The only debate is whether the distinction matters in a practical sense -- this is where the libertarians will probably argue that it does, and I would certainly agree with them, but that argument is a lot more complex and subjective. In this case it's a little easier since the specifics/vagueries of this specific law leaves quite a bit to be desired over the obvious negative rights version of it.
"The government shall not pass any law that restricts the ability of the people to protest" is a much stronger and safer precedent.
To be honest though, the real cool part of negative rights is that you can ALSO have positive rights on top of them. They are not mutually exclusive! Take the following phrasing:
* The government may not pass any law that infringes on the right of the people to encrypt their data (this is now a constitutional amendment and nobody can change it without a huge supermajority)
* Also, private companies may not prevent users from uploading, downloading, sending, or using encrypted data, subject to the following restrictions... (this is now law but we will keep updating this)
You have a negative right that says "the government can't abridge this right". THEN you also have a positive right that protects consumers against the actions of private companies. This is the ideal formulation for rights, I think. Negative rights are a constitutional baseline that are hard to get rid of. Positive rights need to change rapidly to address the quickly evolving world. Thus positive rights are best handled by lawmaking, while negative rights are best given strong constitutional protections.
That is already the case, however certain players that have an incentive, have actively undermined not just negative rights in general, but they have also been undermining people's ability to understand the topic, let alone support it.
Most people don't really understand, especially today, is that the bill of rights does not establish rights at all, it is really a bill of laws that prohibit the government and all subordinate jurisdictions from impeding on right in the enumerated manner.
The reason the founders quickly realized they needed the Bill of Rights is because humans are scoundrels and if you don't set hard boundaries, especially the attorneys will start convoluting everything into knots; hence why they felt strong enough to put the scoundrels on a leash regarding certain rights, e.g., free speech, right to keep and bear arms, etc. As it turns out, even those laws making it illegal, prohibiting government from infringing on those specific things, was not enough to keep the scoundrels at bay. They have still twisted us up in knots to the point where people are and do gaslight others by saying things like that basic things like suppressing free speech only applies to the government. Don't worry folks, slavery is only prohibited when the government does it … you are free to enslave.
The American perspective only assigns enumerated rights to enumerated people. People are assumed to not have rights when the constitution does not apply, or it does not specify the right. The government grants Americans those rights, the people don't have them by virtue of existing. Otherwise, the government could not spy on other countries, since those people would have 4th amendment rights. The same goes for the right to drive, which the government is perfectly allowed to infringe on since it is not specified in the document.
Universal human rights isn't just American, it's a bedrock of democracies worldwide and of international law.
Also, the US doesn't say states "only illegally and immorality interfere", but that their core purpose is to actively protect human rights:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...
Germany should look to Estonia who, IMHO, gets it right.
Is it possible that a 83x larger population has different infrastructure needs and it’s not that Estonia did an outstanding job but that Estonia’s problem space is much simpler?
When the chip IDs were rolled out in DE the Bundestag didn’t put in place any rules requiring that that banks or others be required to use the PKI (even only when offered and available) to protect and authenticate personal information. So of course the banks didn’t bother. Without any major use case, nobody else did either.
This was claimed at the time to be a way to let business lead, but really it was because business were happy not to have to provide extra privacy protection so lobbied against it.
Compare that to chips in credit cards in the 1990s: they really cared about protecting money so put in all sorts of rules to make the use mandatory.
Bad enough that German citizens are required by law to have a valid ID card in the first place (see Ausweispflicht). Something pretty unique and a relic from the third Reich. We don‘t need more data on them. It will be leaked, it will be misused, it will have exploitable mistakes. ID cards should stay a dumb piece of plastic.
I agree with you that mandatory ID cards are an affront to human rights, but you are sadly wrong to consider it unique to Germany. Quite the contrary: apart from commonwealth countries and the USA they required by all other OECD countries and many others besides (e.g. India, China, Malaysia, Russia…)
Their origin predates the nazi era too. For example passport system was introduced on a “temporary” basis during WWI but rather than revoking it several countries used it as the foundation of their ID system.
So, there's clearly an opposition.
[0] https://www.heise.de/news/Innenminister-Angriff-auf-Verschlu...
Also, it's easy to forget that this country had active right wing and left wing terrorists not so long ago.
So, yes Germany may have slightly overstepped their authority putting AFD party members under surveillance considering it is now a major party in several of its states and of course the parliament. In that sense it's a big scandal actually. But it's not entirely without reason. There are some really shady and scary people associating themselves with that party.
I guess these anti-globalist ideas have had enough time to percolate that even HN is supporting their fruits now.
The West German government had a reputation for supporting strong crypto (unlike the East Germans and Nazis).
They were aware that many of their day-to-day communications were being intercepted by the East Germans (much as they intercepted East German communications).
Many West Germans had loved ones in East Germany who could at least in theory face negative consequences for the actions of West Germans.
West Germany simply couldn’t be free without strong crypto.
So while NATO forces are really big on supporting "strong crypto" for their own practical needs, what they were not really big on is supporting strong privacy rights for them West German people, as that would just "complicate" finding all those Communist spies and sympathizers.
Who were suspected to be everywhere, as split Germany was pretty much the main battlefield of the covert cold war.
That's why the West German G-10 law was specifically modified [1] at the request of the NSA [2] to legalize their, and that of NATO forces, mass spying on German citizens.
Btw: In terms of "Nazi encryption" it's a bit odd to make a statement like that, the Nazis, just like the USSR, the US, or pretty much any formal military force, did and still do use "strong crpyto" for their own needs [3].
That's why conflating encryption tech with privacy rights, as if they're just synonyms, is quite misleading.
[0] https://www.zeit.de/politik/deutschland/2013-10/nsa-uerberwa...
[1] https://www.europarl.europa.eu/document/activities/cont/2014...
The US, notably has single member districts with plurality voting, which is extremely likely to produce two dominant parties. That's combined with a Senate that requires a supermajority to pass most legislation. Add a little more polarization than usual to that mix and the government can't legislate.
Neither plurality voting nor the filibuster rule are in the constitution. States have the authority to determine their own voting systems, and two states, Maine and Alaska have adopted instant-runoff voting for some elections. The Senate has the authority to change its rules, and has chosen to keep the filibuster in something resembling its present form since the 1970s with a small number of exceptions.
I wouldn't call them completely different, they are also not exactly the same, but there are also quite a few parallels.
Case in point; In neither place the people vote directly for president/chancellor.
And which is elected in such a way that it is unlikely to represent the will of the people; it represents the will of the constituent _states_ (kind of). Which, where one has a powerful federal government, is a rather weird setup.
It should be noted that the Founders themselves saw the problems inherent in such an approach. Hamilton, Federalist Papers #22 [1]:
"Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration."
And further:
"To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy."
This last part in particular sounds very much like modern federal politics, does it not?
Now, this all has been written originally about the Articles of Confederation - under which every state had a single vote in the (unicameral) Congress - to promote the new Constitution, then still to be ratified. But the arguments remain valid. More so, in fact, because one of the complaints above is that the smallest constituent state contains only 1/60th of the entire population of the Union; but in modern US, this ratio is 1/500th (Wyoming)!
Not saying that Germany shouldn't "let you back in" if you want to immigrate back, but the mere fact that your ancestors were German should not qualify you more (safe for certain exceptional populations in recent war history) than others whose ancestors might for instance come from the UK.
In the eyes of Germany, if you parents were German you are German too, even if your parents never visited Germany.
The chain is only broken if you apply for foreign citizenship or serve in foreign armed forces.
To me it is bizarre that the mere fact of being on holiday in America at your time of birth makes you American.
The exact rules are complicated but it's worth looking in to.
If you think about it, if I grant you a right to privacy - what can that possibly mean to you? If not just I, but I and 10 others (or 100, or 10000) agree to grant you a right, still - what does that mean? Do you now have that right?
In fact, the position is nonsense.
The question then, is at what point do a bunch of people become a government? What is the magic number? And on what basis does a government have greater rights than the individuals it purports to represent?
The answer in reverse, is that government does not have greater rights than individuals. It does not determine morality. A majority of people might decide to rule over others - and they may be successful via their greater or co-ordinated force - but at no point does that use of force become a right. Put simply, if someone or a group or a government initiate force, that is a wrong. Re rights, you can do whatever as long as you are not harming another.
Governments are not greater than individuals. While we might go along with government dictats or government 'granting of rights', there is no moral basis for it. It is just the labouring under an illusion. The government illusion is powerful, for sure, and there is malign threat therein, but at no point can government create a right that is not already existent for the individual. If some people believe it can, they are mistaken. If those people undertake the dictats of government, acting forcibly against other that have done them no wrong, they are acting immorally.
In answer to the main post then, individuals have always had a right to encryption, if it is not harming anyone. Governments have never had the (moral) 'right' to decrypt as that is stealing someone's privacy. Governments can of course write laws to justify whatever they like, but these laws themselves need to align with morality to be 'right'.
PS I seriously don't mind being down-voted, but would rather understand what the objections are to my argument.
Morality is a rough one. Most people who study ethics and metaethics do follow moral realist positions, but positions under that umbrella are manifold. When you look outside of moral realist positions, there are even more positions.
So, the government doesn't govern morality, but even the people who study it can't form consensus.
> Governments can of course write laws to justify whatever they like, but these laws themselves need to align with morality to be 'right'.
Your problem isn't with rights or governmental egregores, it's with an inability to reconcile a morality with the turtles-all-the-way-down-esque social relations that summon said egregores.
Until your moral claims can said to be true, then my rights could contradict yours, and it might not be reconcilable. Here someone smarter than me might even consider that the job of government is to reconcile the infinite, inconsistent beliefs, and to give some basis of "rights."
The moral claims I make are innately true to all individuals. You can pretend that government has the right to do that which you cannot do to another individual, but you would be wrong.
You can do what you like as long as you are not harming another.
A collection of people do not/cannot have greater rights than an individual. An individual cannot grant another a right eg to privacy. An individual can respect anothers right to privacy. Or he can disrespect that privacy. If he does disrespect that right, that individual has done a wrong.
This same method applies to groups. If 10 people decide to disrespect an individual's privacy, this is still a wrong. There is no number, no implied convention that can make disrespecting privacy the right thing!
You need to convince me and ethicists, first because I could introduce you to some error theorists who would say otherwise. It's literal he-said, she-said with people choosing to believe what they want to believe in. Whether they base this in the categorical imperative or the bible.
To make it 100% clear what point I'm trying to make is this: you can't just make a normative statement or that your morals are globally valid. When you do so, you say X ought do Y. So you need to prove that "ought". Why ought X do Y? And what makes that normative claim applicable outside X?
> You can pretend that government has the right to do that which you cannot do to another individual, but you would be wrong.
I was never interested in doing so, just in saying that anything you consider to be a moral fact isn't verified.
> You can do what you like as long as you are not harming another.
Andrey Chikatilo would expand this a bit. So would Dahmer.
> The question then, is at what point do a bunch of people become a government? What is the magic number? And on what basis does a government have greater rights than the individuals it purports to represent?
is a nonsense argument and it is the crux of the rest of your argument.
The answer to when adding a grain of sand to other grains of sand becomes a pile of sand is not 'never' even if there's no obvious dividing line.
Where does government get its authority from then?
I say it is from force, and that the force comes from many individual's false belief that government is right to do as it does.
Eg, if you find you don't agree with what government does, can you withdraw? Say you don't agree with government starting a war in another country, and decide not to pay taxes, will you go to jail?
Most people do see that there is no choice, that it is based in force. However, they will also try to rationalise their acceptance of the force, and in so doing propagate the beast.
>The question then, is at what point do a bunch of people become a government? What is the magic number? And on what basis does a government have greater rights than the individuals it purports to represent?
To me and likely yourself the answer to this question is Never, the government never has more rights than the individuals
The US was (and I stress was) the last nation on the planet where this idea had even small roots in the ground as a foundational principle of governance, sadly that has been lost and any of those roots that may have been left were yanked out of the soil at the start of COVID.
Today the rule is "The needs of the many, outweigh any rights of the individual"
Yes, many people think this nowadays. I think because they did not experience the downsides of this or it is not relevant now.
I think most people tolerate manifestations of this quoted idea to some extent now, when it makes sense to them or it is close enough, and is bearable, like some of the pandemic restrictions.
True, this sets up a dangerous precedent, but I don't think it's certain most people completely bought the quoted idea in general. With some of the less sensible restrictions and mandates, many people realized just how wrong is to take that idea as gospel for every possible situation.
Of course one can think of oneself as being outside the power of government, and that is very powerful. Then some principles such as human rights are naturally seen as inalienable and independent of what any government says/legislates/enforces. Such independence of thinking and actions from the government is sometimes a highly moral position, like when people in Europe helped hide and save Jews from Gestapo.
But morality is not universal, people have different views, and the government and its tools are still there, they can threaten and hurt people. So many will usually choose to comply with the government restricted version of human rights, as long as it's bearable.
But you do it all the time. If someone tells you something in confidence, you explicitly agree to respect their privacy. If you sleep with someone, you implicitly accept that the other won't broadcast the shape and size of your genitalia to the world. If you run into an acquaintance in public, you implicitly agree not to broadcast each other's whereabouts to the entire world. What's so difficult about the concept of privacy?
at what point do a bunch of people become a government? What is the magic number?
That question makes no sense: the magic number, if it exists, is one. If you want to fully understand why, you probably should pursue a multi-year education in international law.
government does not have greater rights than individuals
Governments don't have rights at all, so this is true. Governments have sovereignty and mandates instead.
[government] does not determine morality
Indeed it doesn't. But it does formalize and encode morality, in the form of laws. So rather than railing against this law as if it violates your tummy, maybe you'd be better served to understand the morality of the society whose government is drafting this law?
The government illusion is powerful
This is why you are downvoted, I think: you are expressing your feelings about government from a state of perpetual learned helplessness. The very idea that "the government is us", which is the core concept of democracy, seems alien to you. I know that this affliction (the feeling of not having a say in how your country is governed) is particularly prominent in the US, but it gets a bit old and trite to see commenters spouting their dysfunctional relationship with their own government onto every story, as if their traumas are universal truths. It's just noise, and adds nothing to the discussion.
> But you do it all the time. If someone tells you something in confidence, you explicitly agree to respect their privacy. If you sleep with someone, you implicitly accept that the other won't broadcast the shape and size of your genitalia to the world. If you run into an acquaintance in public, you implicitly agree not to broadcast each other's whereabouts to the entire world. What's so difficult about the concept of privacy?
No I don't. I may _respect_ another's privacy, but how can I grant that right? What authority do I have to grant a right to another? You are mistaken considerate behaviour for some magic/godly ability to grant rights.
> If you want to fully understand why, you probably should pursue a multi-year education in international law.
There is nothing in law that can explain the mechanism whereby one individual can grant a right to another. Well, perhaps you can say contract law can achieve something like this - eg if I already have a right (eg of freedom of movement) and then I sign a contract with another to say I will only exercise that right if they allow it.
But there is no implied contract that can be valid. No individual can assume that they do have the ability to allow others the right to freedom of movement. The contract would need to explicit - ie you would need to have signed it. Yet this is how government works.
You did NOT provide consent to government. Nothing was signed, yet the government assumes your are subject to its laws. There is no basis for this. (Arguably you do 'buy in' when you vote, but you can also withdraw).
If 'government' is a collection of individuals that believe they should be governed by the consensus of the group, ensure their laws and management structure is adopted by others that are outside the group, that self-govern? There is no moral right. Without consent there is only force.
> But it does formalize and encode morality, in the form of laws.
For sure it does not formalise nor encode my morality. Does it encode yours? Personally, I would not restrict others freedom of movement if they are not harming others. I would not force to accept my authority of their body (eg via mandatory vaccines).
> you are expressing your feelings about government from a state of perpetual learned helplessness. The very idea that "the government is us", which is the core concept of democracy, seems alien to you.
Government has nothing to do with me. It sees fit to inflict its 'laws' on me - but there is no morality to this, only force. It is a helpless situation though, that is true. I am a victim - as most other people really do believe in this illusion. They do not accept my right to govern myself. Even though I am not harming them (ie I am acting morally) they do see fit to act immorally against me - they will force me to act as their government has deemed fit. Eg they will force me to pay tax or force me to take 'medicine' despite my choice, or prevent me from going where I want, etc. Legality has nothing to do with this as government can write laws to make this legal
Government is a beast based in force - and has nothing to do with rights and wrongs. It is the mechanism of an elite class to manage people collectively and has - via education - has kidded us into believing the mechanism they control somehow relates to individuals.
The illusion is so strong most of us believe it is actually right to force others to do what it says!
Perhaps not ethically or morally or whatever.
But that only matters in a philosophy classroom.
In the real world, they are.
HTH!