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Comment by rayiner | Hacker News Reader

i don't see how that argument makes sense. Yeah there were no wire taps, but there also weren't any wires for criminals to use to communicate. Criminal investigators have histroically been able to get at any place where there might be evidence, with a warrant. The historical maxim has been "the law is entitled to every man's evidence." You could put a lock on your desk drawer, but that can be easily bypassed with a warrant. There is protection against warrantless searches, but once due process is given, a court's power to compel the disclosure of evidence is almost unlimited.

An encrypted hard drive is a totally unprecedented thing in that regard.

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But this has already happened and the judge in question 'compelled' the suspect to decrypt her laptop. I don't know if she ever did, whether there was any evidence that was germane to the case on it or whether she was held indefinitely but there is recourse for the authorities in these cases.

http://www.cnet.com/news/judge-americans-can-be-forced-to-de...

Eventually her husband provided the cops with the correct password[1]. The 5th Amendment prevents you from providing testimony that would incriminate yourself. In this case, though, she was being compelled to decrypt the laptop to produce evidence against someone else - Ms. Fricosu was granted immunity against any evidence collected from the laptop[2], so she didn't have any 5th Amendment grounds. In general, a Grand Jury has the right to subpoena any evidence from a third party that is relevant to a criminal investigation, and you can be held in contempt if you don't produce it. She had already admitted in a wiretapped conversation that there were documents relevant to the case on the laptop, the laptop was in her possession and that she refused to give them the passwords.

[1] http://www.denverpost.com/ci_20080656

[2] http://www.wired.com/images_blogs/threatlevel/2012/01/decryp... (p.9)

The use of crypto for information security predates the United States. It wasn't very good crypto back then, but it was around. People also had other ways to obscure information from the government: shorthands, code books, code phrases, foreign languages, argots, and cants (and physical seals, to discourage tampering with mail).

> An encrypted hard drive is a totally unprecedented thing in that regard.

Then governments with enumerated powers would need some unprecedented powers to get into that unprecedented thing, right?

> Then governments with enumerated powers would need some unprecedented powers to get into that unprecedented thing, right?

Only the federal government is limited to its enumerated powers. So at best your argument is that mandating backdoors requires state rather than federal action. State governments can do whatever they want unless it conflicts with a Constitutional right, and there is no right to have a place to stash evidence the government can't get to with adequate process.

Sometimes human memory is such a place under the fifth amendment.

The contents of your human memory are not protected as a general principle. For example, you can be compelled to testify against someone else. You can't be compelled to testify against yourself, but the premise of that protection isn't some general right not to disclose the contents of your memory, but a very specific right against forced confessions.

> and there is no right to have a place to stash evidence the government can't get to with adequate process

Enumerated powers of government. Unenumerated rights of the people.

All that means is that you don't have to point to the Constitution to prove a right exists. The right still has to exist somewhere and be recognized.[1] The power of courts to access nearly all evidence with due process predates the Constitution and nothing about that document shows any intention to alter that practice.

[1] "Rights" are exceptions, not the rule. The rule is the will of democratically elected legislatures. Rights are exceptions to democracy and should be construed to swallow the rule.

Rights are expansive. There is no "precautionary principle" when it comes to rights. If a new thing is discovered, like strong encryption, I have a right to use it in conjunction with my other rights. If I can make a cheap personal rocket, I have a right to launch myself into orbit, as long as I'm not infringing on others' rights. The fact that such a rocket means anyone can build an ICBM doesn't put it outside of one's rights.

Governments have no inherent power to "inspect." You seem to think governments should have superior powers to individuals. While there is a philosophical argument for this, that doesn't mean it's always going to be true.

If code is speech, so is strong encryption.

It's fallacious to use the concept of "enumerated powers" and "limited government" to argue that "rights" in the U.S. are, or were intended to be, structured the way you describe. "Limited government" concerns the allocation of power between the state and federal governments, not the relationship between those governments and individuals.

State governments are not ones of enumerated powers and they are not limited. They are successors to the British Parliament and inherited the powers of that institution including the general police power. Against that backdrop, "rights" are those specific restrictions on the exercise of that power that states have bound themselves to by the federal Constitution and their own constitutions. There is no room in that framework for an expansive conception of rights that all exist so long as you're "not infringing on others' rights."

A great concrete example is blue laws, which were widespread at the time of the founding and regulated everything from alcohol sales to food consumption. Some of those have been challenged, hundreds of years later and mostly unsuccessfully, on establishment clause grounds, but there is little doubt the states, as a general principle, have the right to regulate public morals.

> there is little doubt the states, as a general principle, have the right to regulate public morals.

You must have a pretty rigorous definition of "public morals." I'd like to hear one that isn't a novelty, that accommodates gay marriage.

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