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- Newsgroups: sci.crypt
- Path: sparky!uunet!walter!qualcom.qualcomm.com!servo.qualcomm.com!karn
- From: karn@servo.qualcomm.com (Phil Karn)
- Subject: Re: the Right of Privacy
- Message-ID: <1992Nov2.020648.27527@qualcomm.com>
- Sender: news@qualcomm.com
- Nntp-Posting-Host: servo.qualcomm.com
- Organization: Qualcomm, Inc
- References: <1992Oct26.180813.7002@netcom.com> <7553@transfer.stratus.com> <1992Oct28.111437.1@zodiac.rutgers.edu>
- Date: Mon, 2 Nov 1992 02:06:48 GMT
- Lines: 85
-
- In article <1992Oct28.111437.1@zodiac.rutgers.edu> leichter@zodiac.rutgers.edu writes:
-
- >Note that the word "privacy" does not occur in this Amendment. In fact, I
- >don't believe it occurs anywhere in the Constitution or in any Amendment.
-
- Quite true.
-
- >(Anyone have the text of the Constitution on line? It would be really handy
- >for such discussions.) A "right to privacy" has been inferred by some judges
- >from the general philosophy of the Constitution, and from the Ninth and Tenth
- >Amendments, which reserve unspecified, unmentioned rights and powers to the
- >people and the states.
-
- Also true -- the most famous interpretation of the Fourth Amendment as
- protecting personal privacy arose out of the Roe vs Wade decision on
- abortion. And even some staunch abortion rights supporters that I
- know are quite uneasy about the legal reasoning behind this decision.
-
- By the way, the ACLU has just launched an "exploratory campaign" to
- rectify this situation by amending the Constitution to provide an
- *explicit* right to privacy.
-
- >NOTHING here supports a right to
- >communicate messages or store data in a way that cannot be reached by the
- >government, given an appropriate warrant.
-
- That's because you're looking at the wrong amendment -- the Fifth is
- probably more relevant here than the Fourth. In general terms, the
- Fourth protects your physical property and the information stored in
- it, while the Fifth protects you personally, including the information
- stored in your brain. Cryptography is blurring the formerly clear
- distinction between these amendments in some very interesting ways.
-
- > There is NO precedent for such a
- >right. The closest you can come are some very specific protections, such as
- >the protection against self incrimination (a protection adopted, by the way,
- >not out of any concern for privacy but to help prevent the use of torture or
- >other means of pressuring confessions - for which it was eventually seen to
- >be insufficient, leading to the exclusionary rule),
-
- Sure there is -- the Fifth Amendment right you just mentioned. If I
- encrypt some files, and the crypto key is only in my head, the Fifth
- Amendment *clearly* protects me against being compelled to divulge it
- if the information it produces could be used against me in a criminal
- proceeding. So says just about every lawyer I've ever asked,
- including one who specializes in Fifth Amendment issues.
-
- >conduct trials. Those "sealed envelopes to your buddy in CA" can be opened
- >under court order, or your buddy can be given the choice of telling what was
- >in them or sitting in jail. You never had some of the "rights" you seem to
- >think you had.
-
- You forget the crucial distinction between being compelled to testify
- against someone else and being compelled to testify against yourself.
- You certainly can be compelled (under threat of jail) to testify
- against anyone else (with certain exceptions, such as spouses, legal
- or medical clients, etc.) But being compelled to testify against
- *yourself* is exactly what the Fifth Amendment is all about. The
- Fourth Amendment may be relative (i.e., you can still be searched as
- long as the government first obtain a warrant) but the Fifth Amendment
- protection against self incrimination is about as absolute a right as
- they come. I cheered when Ollie North got off recently, not because I
- am a fan (I think he's slime) but because he had been convicted on the
- basis of testimony that he was compelled to give to Congress. The
- Fifth applies to *everybody*.
-
- You see, right-wing protests to the contrary, I have *never* believed
- that there is any real conflict between the Bill of Rights and
- maintaining law and order. Nor do I believe that the uncontrolled
- private use of cryptography will change this. Using cryptography
- won't prevent the government from compelling your co-conspirators to
- testify against you. It won't prevent them from becoming government
- informants. It won't prevent the government from collecting other
- types of incriminating evidence against you, including the planting of
- bugs. But it *will* stop the government from again abusing its awesome
- wiretapping capabilities.
-
- About the only laws that cryptography *can* render unenforceable are
- those against the mere personal *possession* of information that you
- never use in any externally discernable way nor reveal to anyone else.
- And this is probably all to the good. It's about time that the laws
- dealt with real criminal acts like murder, fraud and theft -- not
- easier-to-prove but intrinsically harmless acts like "possession".
-
- Phil
-