From: billmcc@seanews.akita.com (Bill McCormick)
Newsgroups: sci.crypt
Subject: Re: the Right of Privacy
Date: 12 Nov 92 06:33:00 GMT
Article-I.D.: seanews.1992Nov12.063300.12408
Organization: SEANEWS - Seattle Public Access News & Mail

In article <1992Nov2.020648.27527@qualcomm.com> karn@servo.qualcomm.com (Phil Karn) writes:
>>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.

This has really started to get crazy.

When the Bill of Rights was initially proposed it was argued that listing
rights was a bad idea.  Listing some rights, it was argued, would mean
that people would get it in their heads that those are the *only* rights
people have.  "Hah" said the others.  That's just silly.  Well, OK, we'll
put in the "failsafe" clause -- we'll add another ammendment to make it
clear that just because we listed some specific rights does not in any
way imply that those are *all* the rights.

And so was born the 9th ammendment which says, loosely, "We listed some
really important things here -- but don't get it into your head that
this is every right.  It isn't.  There are rights that are just as
important and protected.  You can't use the fact that a right isn't
listed to reduce or infringe.  The unlisted rights are just as important
as the listed ones."

This is the basis of the Roe-vs-Wade decision.  The Supreme Court decided
that the 9th Ammendment obviously includes that most basic of rights,
"The right to be left alone."

Everyone who argues that because the Constitution doesn't specifically
list a right it doesn't exist is just wrong.  Period.  The Consitution
explicitly says so.  Historical record says so.  Case law says so.

The Constitution of the United States does not grant any rights whatsoever.
The Bill of Rights doesn't grant any rights.  It's only 

>> 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),

You are started from an invalid base assumption.  Namely that if a right
of the people isn't mentioned in the law that there is no such right.

This is incorrect.  Clearly the intent is that if a *government power*
is not *explicitly* listed then there is no such power.  Since the US
Government was not granted authority over every personal communication
the government has no such authority.

Perhaps this is a little too abstract.

Let's get down to cases. 

The Masons have a secret written code.  They've used it for quite a while.
Would it be reasonable to have them required to submit the key to that
code to the government now -- so that "just in case" the government may
decide to read their messages in the future?

A man writes love-letters to his mistress.  He encrypts them so that
neither his wife nor her husband can read them.  Is he required to
submit his key and encryption system to the government just in case
the government ever decides he might be guilty of something?

Used-car lots use a pawn-shop code to encrypt the asking prices of
cars in their lot.  Do they need to register this key?  What if they
change it weekly?

Joe keeps all of my financial records in a locked safe.  It's
quite secure.  Should he be required to give the combination to the
government "just in case" they might want to look in it in the future?

>>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're missing the point.

The government can open the envelopes under court order -- if you ship a
safe they can break it open under court order.  They can't force you
to give them a copy of the keys beforehand -- just because you might
eventually do something illegal.

The "safe" analogy seems to be the best model.  Requiring registration
of crypto-keys is *exactly* the same as requiring registration of safe
keys and combinations.

Why is it that it's immediately obvious that being required to give
the government copies of your safe or house keys is incredibly intrusive but
that requiring registration of crypto keys doesn't evoke the same
response.

Something to think about.

Bill
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