From: karn@servo.qualcomm.com (Phil Karn)
Subject: Re: the Right of Privacy
Organization: Qualcomm, Inc
Date: Mon, 2 Nov 1992 02:06:48 GMT

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
Newsgroups: sci.crypt