I don't believe the Constitution demands that we make it "easy" for law enforcement to collect evidence, though I'll again note that the animating common law principle comes close: the public is entitled† to every person's evidence.
I work closely with cryptography and think about cryptographic freedom mostly the way other people on HN do. I asked a specific question about the Constitution. The debate about whether we should be "allowed" to encrypt things is incredibly boring, we almost certainly don't meaningfully disagree about it, and I'm not interested in having it.
† or "has a right to" or "has a claim on", depending on whose paraphrase you're reading
> the public is entitled to every person's evidence.
This is w.r.t once it is known to law enforcement and courts. But that's beside the point - I think they person you're replying to is not necessarily disagreeing with you, just extending on what you wrote.
How do you reconcile your principle of "every man" as the overarching concept, with the fifth amendment, doctor/patient, lawyer/client, married couples, executive privilege, etc. There are many examples of privileged exceptions to "every man".
I don't see how "every man" would ever allow the government to demand a tool maker change their tool for the purposes of future evidence collection when that tool has "privileged" uses.
Although I agree with you that the fourth amendment was not made to make it hard to get a warrant, only to restrict warrants to specific, narrow searches with evidenced probable cause.
We don't have a generally recognized doctor-patient privilege in US federal law.
The Fifth Amendment, as I understand it, was added as a protection against torture.
Attorney-client privilege, which is much more limited than people think it is (see: current US drama), is fundamental to the working of our legal system, which depends on attorneys to function.
All you're really observing here is that we order some principles above the entitlement of the state to evidence. That's certainly true! But nowhere above that entitlement is there a countervailing general right to personal privacy; my understanding of the system we live in is that that right, to the extent it exists, is ordered lower than the state's right to evidence.
> We don't have a generally recognized doctor-patient privilege in US federal law.
You are mistaken.
While currently under assault, Roe v. Wade is the paradigmatic case for the recognition of doctor-patient confidentiality (i.e. "privilege") by the Federal government.
> The fundamental right to privacy, guaranteed by the Fifth and Fourteenth Amendments to the U. S. Constitution, protects against unwarranted invasions of privacy by federal or state entities, or arms thereof. As early as in Roe v. Wade, 410 U. S. 113 (1973), the U. S. Supreme Court acknowledged that the doctor-patient relationship is one which evokes constitutional rights of privacy. [0]
> This doesn't say that the federal rules of evidence recognize doctor-patient privilege, and, in fact, the same site says explicitly that it doesn't.
With all due respect, I disagree with your assertion that "the federal rules of evidence [doesn't] recognize doctor-patient privilege".
SCOTUS's saying they
> simply hold that this record [Whalen] does not establish an invasion of any right or liberty protected by the Fourteenth Amendment. [0]
implies that there could be an invasion of a right protected by the Fourteenth Amendment, just not in this case.
While you are strictly correct that this is not a representation of doctor-patient privilege, SCOTUS's assertion that Whalen does not violate the Fourteenth Amendment suggests the possibility that some distribution of medical data could violate the Fourteenth Amendment.
As a side note, your assertion that the "same site says explicitly that it doesn't" recognize doctor-patient privilege is questionable. Would you mind pointing out which passage is explicit about this?
Nerding out is a good way characterizing where we've gotten and--as I suspected earlier and am now certain--I don't understand what "Federal Rules of Evidence" means in the larger discussion of what kinds of disclosure would violate someone's constitutional rights.
That is a big question and maybe someone like 'rayiner or 'marcoperaza would be a better person to ask, because I have no legal training.
Based on my interested but layperson understanding of the law, my understanding is that it's an open question about the extent to which the Constitution provides a right to privacy. But I do not understand it to be an open question, or at least "as open" a question, about whether the principle of access to evidence is ordered higher than that right to privacy, whatever it may be.
(As, just, like, a person shooting the shit on a message board, I should say that of course I value privacy highly, and can think of a number of situations in which I'd order privacy higher than access to evidence! But I can also think of situations where it'd be the other way around. So, for instance: I highly value my right to discuss sensitive political topics privately, without being susceptible to dragnet surveillance trying to find "terrorists" by combing through everyone's messages. But at the same time, I'd like to see Wall Street executives be held more culpable for the harmful decisions they make to abuse their power and access, and those Wall Street execs no doubt feel a strong privacy interests in protecting their discussions about how to, say, price synthetic securities.)
In Griswold v. Connecticut [1], the Court found the state's law to to be in violation of "right to marital privacy" and deemed right to privacy as right to protection from governmental intrusion.
One Justice cited the fifth amendment to get there, another the ninth -- and plenty of legal scholars have argued the ninth amendment basically acts as justification for finding privacy provisions in the Bill of Rights that aren't specifically mentioned in the other eight amendments.
You're right that right to privacy is an open question of sorts (especially under the Bill of Rights), but there is nearly a century of case law protecting it in various forms.
There are a number of ... not-very-good books on the subject (I picked up Carolyn Kennedy's 1990s effort, it's ... poor).
A challenge is that privacy itself is an emergent concept (this is my view, not one widely shared), which is a response to ever-more invasive or capable technologies. As such, much of the relevant caselaw and legal thinking is fairly new, and reflects advances in publishing (Brandeis and Warren), recording, transmission, and detection.
There are some historical antecedants.
Some of the more interesting non-legal-scholar work has come from Jill Lepore in recent years. I'd suggest her work as at the least a good entry point. She's a historian, and should be copiously documenting sources which may be of interest. Unseen: A History of Privacy (2013) https://scholar.harvard.edu/jlepore/presentations/unseen-his...
The forbidding of destroying evidence does not require one to produce evidence in the first place. Deciding against installing cameras in my house does not mean I'm guilty of destroying evidence.
I think that's a fair point, but the analogizing goes both ways: yes, your phone is generating a lot of information about you that simply wouldn't have existed in the pre-Internet era, but at the same time a lot of information that would have existed in that earlier era is now inaccessible by default, without any effort on your part.
I think the government is on the wrong side of this issue, but I don't think they're making the broad "going dark" concern up. I think technologists need to engage more fully with the law enforcement concerns here rather than dismissing them.
There are already a lot a more sources of information today (beside encrypted nessages) than there was in the pre internet era. At that time you simply called from a public phone (for example), even less trackable. Not to mention all the nowadays technology that ease remote tracking of any sort (micro sensors, cameras etc etc). So no, to me it does not go both ways
I think it's more that they have a right to seek it without interference after the fact. You can not be compelled to disclose the evidence that would be used against you, or any information required to obtain it (and thus constitute a disclosure).
If Facebook/WhatsApp's system was built to put them in a position to incriminate you after the fact, then probably the kind of criminal who would use it is the kind you'd convict by other means.
That leaves you with the choice of whether or not to incriminate yourself.
If you are talking globally each country has its laws or no laws on the matter (as you’d expect there are also contradictory court rulings within a country/ state )
This is definitely the more cogent point, and I expect why the FBI et al. are harping on this point with their PR and legal efforts.
In a world where my provider encrypts, the more ironclad self-incrimination protection does not apply. And there are various loopholes to pressure the provider to enable bulk collection.
In a world of e2e everywhere, the participants must be targeted, and they have the benefit of the 5th amendment.
It gets interesting when you juxtapose that (the gov having limits) with the First Amendment. That is, within certain limits, you can say whatever you want. Say whatever you want, and the gov can't easily "hear" it.
Why is your default position here the government has a right to “hear” anything anyone says? Even with end to end encryption you’d be free to mail a copy of your chats on Facebook messenger to the NSA if you’d like.
I work closely with cryptography and think about cryptographic freedom mostly the way other people on HN do. I asked a specific question about the Constitution. The debate about whether we should be "allowed" to encrypt things is incredibly boring, we almost certainly don't meaningfully disagree about it, and I'm not interested in having it.
† or "has a right to" or "has a claim on", depending on whose paraphrase you're reading