The comment I was responding to implied the Supreme Court "interpreted" the Constitution to undermine privacy rights. But in fact the opposite has happened: it has inserted privacy rights into the document far beyond what is in the text.
As to your point: the 4th amendment clearly does protect a narrow form of privacy: freedom from government trespass to property. But look at the text: it's clearly a targeted, specific, protection. In contrast, look at the broad language of the first amendment: freedom of the press, freedom of assembly, freedom of speech. The framers used broad language when that's what they meant.
And it's not like private communication is such a novel concept they had no reason to even contemplate it. People tend to think of the cloud and encryption as sui generis but the underlying concepts are not. People in 1776 communicated extensively about sensitive matters by letter and in person. Heck, sometimes they even wrote coded messages! They trusted sensitive business and financial information to accountants, lawyers, merchants, bankers, etc.
And if you think about it, if there was some sphere of private communication that the framers intended to protect even from the reach of a warrant, they could have done so even without the existence of encryption! Instead of saying that the government can search your "papers" with a warrant, the 4th amendment could say that the government can never search your papers. Again, it's not like the idea of private communication was novel to them.
This is really a blend of the fourth and fifth amendments. The fourth amendment protects you from the government randomly seizing your phone, but the right to not incriminate yourself under the fifth amendment is what is used to justify not being able to compel someone to unlock/decrypt their device.
4A can't be at play here, because we're talking about searches accompanied by warrants.
That leaves 5A. But 5A isn't absolute either. You can be compelled to produce all sorts of evidence against yourself. And even the basic privilege of not incriminating yourself has a public safety exception.
I imagine if it did, we'd still be having a similar discussion. Without certain events by the court that reset or reaffirm interpretations, Constitutional "wandering" can run amok (see Interstate Commerce Clause and the War on Drugs).
District of Columbia v. Heller comes to mind, where the court confirmed a particular reading of the Second Amendment. In 50 years they'll probably have to reaffirm it again. Or they could go a different way...
I can easily imagine a bizzaro world where the Fourth Amendment does contain the word privacy, and the court has had to reaffirm or reinterpret what "privacy" means in context over and over.
Exactly. The Fourth Amendment should already be plenty for this, but a ton of exceptions have been carved out of it, along with the general interpretation that if your data is on someone else's server then no warrant is needed to access it.
By its text, the 4th amendment applies to "searches" and "seizures." Requiring a back door is not itself a search or seizure, any more than requiring airbags is one.
I oppose requiring backdoors. I might even oppose requiring airbags. But neither is likely unconstitutional.
How does this even make sense? Until recently, virtually all communications that people had were coercively and deliberately backdoored under CALEA. But wiretaps don't fail a 4A test. Why would CALEA's equivalent in software fail?
Then you rely upon the First Amendment, freedom of speech, and prior restraint of speech is strict scrutiny. There is no way a backdoor survives that at the Supreme Court, there is simply too many cases where strong encryption is obviously required for legal use.
Speaking privately is the rockbed of free speech. Without privacy of speech, there absolutely never be any thought that speech is free. To try to restrict the privacy of communication is antithetical.
Obviously that doesn't mean people wont try to do it 'for the better good' but easily usable strong encryption is reality, just the same as the idea that strong encryption isn't going to stop you from being tracked and monitored.
I'm fairly confident that government doesn't need this, and government won't get it. But partly that is confirmation bias because the idea they just might get it is ludicrous to me. It would be as pointless as it is shameful.
They don't have to regulate speech. They can do this purely by regulating commerce, by making it unlawful for Apple or Google to license or sell software or computing devices that don't provide escrow.
The USG doesn't want to eliminate strong crypto. It wants to make it not the default. Notice how the huge "going dark" freakout happened with Apple encrypted phones and messages by default.
Speaking privately was not, historically, the bedrock of free speech. For the entire history of the First Amendment, the government has been able to get access to private speech with a warrant: they could search your person, house, papers and, effects and even compel people you talked to to tell the government what you said.
I don't think the government needs encryption backdoors either. But I also don't think they implicate free speech, at least in the First Amendment sense of the concept. That has always focused on protecting public political and artistic expressions, not on making personal communications beyond the reach of law enforcement.
I found 'The Search and Seizure of Private Papers: Fourth
and Fifth Amendment Considerations' (1973) [1] a very interesting read, and draw from it heavily in the following... A more updated brief can be found under '' "Dearest Property": Digital Evidence and the
History of Private "Papers" as Special Objects of
Search and Seizure' (2013) [2]
You're right, and I mispoke, it's not a matter of free speech as it is a matter of ensuring the privacy and security of the individual. However I think it's incorrect to say that for the entire history of the United States they could search your person, house, papers and, effects. This is matter for the 4th and 5th not 1st, starting back with Boyd v United States in 1886, and has seen much movement and refinement in the last 40 years particularly;
The seizure or compulsory production of a man's private papers to be
used in evidence against him is equivalent to compelling him to be a
witness against himself, and, in a prosecution for a crime, penalty or
forfeiture, is equally within the prohibition of the Fifth Amendment.
Both amendments relate to the personal security of the citizen. They
nearly run into, and mutually throw light upon, each other. When the
thing forbidden in the Fifth Amendment, namely, compelling a man to be a
witness against himself, is the object of a search and seizure of his
private papers, it is an "unreasonable search and seizure" within the
Fourth Amendment.
U.S. Supreme Court
Boyd v. United States
116 U.S. 616 (1886)
'Boyd thus created a "zone of privacy that [could] not be invaded by the police through raids, by the legislators through laws, or by magistrates through the issuance of warrants.' (Warden v. Hayden, 387 U.S. 294, 313 (1967))
[T]here are some crimes, such, for instance, as murder, rape, robbery,
and house-breaking, to say nothing of forgery and perjury, that are
more atrocious than libelling. But our law has provided no paper-search
in these cases to help forward the conviction. Whether this proceedeth
from the gentleness of the law towards criminals, or from a
consideration that such a power would be more pernicious to the innocent
than useful to the public, I will not say. It is very certain that the
law obligeth no man to accuse himself; because the necessary means of
compelling self-accusation, falling upon the innocent as well as the
guilty, would be both cruel and unjust; and it would seem, that search
for evidence is disallowed upon the same principle. Then, too the
innocent would be confounded with the guilty'
-- Entick v. Carrington
The sanctity of papers was limited in Gouled in 1921, taken away more fully by Warden in 1967. What was once considered an unwarrantable intrusion into personal privacy, and compulsary self-incrimination, was now considered a reasonable trade-off against personal privacy and sanctioned "after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of 'a neutral and detached magistrate.'
In Katz v United States in 1967, In Katz the government introduced evidence of the petitioner's part of a telephone conversation to prove that he had transmitted wagering information by telephone in violation of federal law.87 The Court, while finding the particular search to be invalid since it was not authorized by a warrant, stated:
[I]t is clear that this surveillance was so narrowly circumscribed
that a duly authorized magistrate, properly notified of the need for
such investigation, specifically informed of the basis on which it was
to proceed, and clearly apprised of the precise intrusion it would entail,
could constitutionally have authorized, with appropriate safeguards, the
very limited search and seizure that the Government asserts in fact took
place.
"However, the utterances at issue in Katz were wagering information and thus would be classified as means and instrumentalities of a crime rather than as mere evidence. 2 Furthermore, Katz did not deal with private papers and thus offers little assistance in determining whether there are circumstances in which private papers should be immune from search and seizure."
Diaries, and even private communication, to the extent that they are not instrumentalities and means by which a crime is committed, have long been seen as deserving protection even against seizure with a warrant. "Diaries, for instance, give rise to important privacy interests, are not a substantial means of committing any offense, and need not be seized for the general enforcement of any particular law. Their seizure in whole or part should not be countenanced unless the contents sought to be seized can be described with such particularity that it is clear that privacy interests have already been compromised."
'The positive law has closed its eyes on history. Federal Rule of Criminal Procedure 41 flatly equates “documents, books, papers, any other tangible objects, and information.” The rule plainly contemplates “the seizure of electronic storage media” for “later off-site copying or review.” Today, federal agents may obtain warrants to seize and carry away entire troves of digitally stored private papers and peruse those files at remote locations, one by one. What the leading Whig polemicist denounced as an “abominable outrage,” what the common law condemned as a relic of the Star Chamber, and what no American legislature authorized for the first eighty years of Independence, has become standard law enforcement procedure.' [2]
Note that "speech" here does not really mean "any communication". Conspiring to commit a crime, while technically communication, is not the speech the First Amendment refers to. It's more about expressing (political) opinions publicly. Otherwise, if the First Amendment means you cannot get arrested for speaking freely, why would you need privacy? ;)
