Opt-Out Citizenship : End-to-End Encryption and Constitutional Governance
▻http://www.uncomputing.org/?p=272
In the US, there is no unambiguous constitutional right to privacy—none of the Bills of Rights specifically grants a right to privacy by name. Case law, and readings of the 4th (against unlawful search and seizure) and 5th (against self-incrimination) amendments in particular, have led to a tacit right to privacy. Here is how one of that right’s fiercest advocacy groups, the ACLU, explains that right:
The right to privacy is not mentioned in the Constitution, but the Supreme Court has said that several of the amendments create this right. One of the amendments is the Fourth Amendment, which stops the police and other government agents from searching us or our property without “probable cause” to believe that we have committed a crime. Other amendments protect our freedom to make certain decisions about our bodies and our private lives without interference from the government – which includes the public schools.
Note what this does not say. It does not say, anywhere at all, that citizens have the right to hide their activities from law enforcement when they do have probable cause. It does not give us the right to conduct criminal activity and to hide those actions completely from the government.
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Update, Dec 17, 2014: This piece has gotten some attention recently due to the fallout from Pando’s reporting on Tor, and Pando’s reposting of my “Tor Is Not a ‘Fundamental Law of the Universe.’” In a very interesting Twitter discussion with W. Greenhouse, it became clear to me that the word “encryption” here may be a bit of a distraction. Encrypted services in and of themselves are, for the most part, not what I’m getting at, but rather the kind of service Tor offers, which at least advertises itself as making all communications, including metadata, invisible to any sort of observation. Though what “encryption” and “anonymity” mean as one starts to install them throughout the system remains an open question. I definitely want banks and brokers to be able to encrypt the traffic between themselves and their customers, and I don’t have a problem with companies using VPNs to conduct remote business with clients and employees (although my quick guess would be that all of these services, at least within major companies, exist within significant compliance regimes–ie, requirements to store, report on, and produce the records of such communications when required to do so by warrant). But I don’t want banks and brokers hiding their activities so routinely that it becomes even more difficult than it already is to document wrongdoing inside of them. The Tor Project website boasts that “business executives use Tor,” and offers a bunch of positive sounding use cases, but it is not hard to think of many ways “business executives” might find Tor extremely helpful in evading legal and regulatory requirements.
C’est vieux mais on me l’a cité comme exemple pour un sujet à développer. Bof, je trouve qu’on a des trucs plus importants à discuter.
