His argument is clearly that people have a right to privacy. It says so in his next sentence.
The 'no, sorry' is him discarding the emotional plea that often justifies invading a person's privacy in the first place ("please, won't somebody think of the children!").
I say it's an incomplete argument because there is no mention of how we should go about prosecuting child pornographers and terrorists, rescuing missing persons when phone/email records are our only clue, and so on. There's just "no, sorry", the right to privacy trumps these things under all possible circumstances.
The question remains.. why?
Why is a world with ideally zero ability to prosecute child porn (to pick one) a world we should want to live in? Laws don't mean much without the ability to enforce them, so are you advocating living in a lawless world? Police powers can be abused, but does that literally mean we should end all police, at least as it pertains to crimes involving communication such as plotting murder, child porn, etc.?
Do you believe that we should all give up our right to privacy just in case it allows us to save a few people here and there?
I know that makes me sound like a dick at first glance, but do you really believe that if you answer "yes" to the question above, we are guaranteed that this system will never be abused?
I think the answer to that has already been provided in light of recent events.
No, we all should not give up our right to privacy. There should be lawful means to investigate crimes with proper judicial oversight.
For example, today, and for much of the history of democratic society, the police have the power to search your person under certain circumstances. I hope you would agree that you still enjoy a "right to privacy" in our society.
"Right to privacy" has always encompassed a body of law governing privacy. It has never been an absolute.
By comparison, the same is true for "free speech". We should not give up our right to free speech. Nor should we all start shouting fire in crowded theaters.
Of course there are no guarantees that abuse is impossible. That's what the fight for free speech and privacy is about: proper and just oversight by the citizenry -- not the abolition of lawful society.
No, we all should not give up our right to privacy. There should be lawful means to investigate crimes with proper judicial oversight.
Sure. And I'm arguing that a judge that would sign a court order instructing Lavabit to turn over its private SSL key is displaying ridiculously improper, poor judicial oversight.
My comment was actually a bit more meta and high-level than that, though. My fear is that an "untappable service" might at some point become illegal. For example, if I were to put up a communications service that allows someone to send encrypted, plausibly-deniable messages, and I don't and cannot have the ability to decrypt them, the government would try to make that sort of thing illegal.
You act as if it's a binary thing. It's not all or no privacy. It's always been some privacy , and you have more or less depending on circumstances.
Nothing is guaranteed to be abused, but when checks and balances works, things get harder.
Try not to forget that before the FISA Court there was no court and the president did what he wanted in that domain. Things are getting better (even if at a glacial pace).
We should prosecute crimes the way we always have: presumed innocence until proven otherwise with evidence.
A right to be able to communicate privately doesn't make Plain Old Telephone calls not be easily traced, or make the police useless.
How about this example, to clarify the issue:
However pedophiles (or terrorists) get their content, be it a darknet site or the sneakernet, under the 5th amendment a person can refuse to give a password to decrypt harddrives with potential illegal content that could incriminate them in a crime.
Following your logic, should we not rescind the 5th amendment, so that people have to prove they don't have exploitative images of children?
> presumed innocence until proven otherwise with evidence.
That's exactly the problem. Lawful surveillance is one of the most fundamental means of gathering evidence. If you take away that, then in a lot of cases you take away the ability to prove guilt.
You offer no support for the claim that police would be useful in a world where all telecommunications are impenetrably encrypted with no means for lawful intercept. If "Plain Old Telephone calls" are the only interceptable means of communication by police, then you might as well rename them the "Plain Old Police", since they would be largely ineffective.
I have not argued for rescinding any rights whatsoever. It is you, I would argue, who is arguing for rescinding the police, which are an essential part of a lawful society.
The flaw in your reasoning is that while individuals are protected from self-incrimination, no such right extends to third parties. Nor should it. The 5th amendment does make it harder for police to prosecute people, but with the power to compel other people to testify, to have service providers turn over records and surveil with proper judicial oversight, and so forth, it has been judged over the centuries to be a fair balance of powers.
To block all police power to surveil under any circumstances would substantially cripple their ability to gather evidence.
And so the question remains: If you feel lawful intercept of communications is never justified, how would one go about gathering evidence of a largely communications-based crime such as child pornography or plotting a murder?
Yes, in this case, it was the Lavabit service. But tools to allow for private communication already exist, and in those cases, the 5th amendment protects the parties involved, with no service provider able to provide the police useful data. The more the government abuses its surveillance abilities with massive collections, the more pressure will exist for criminal enterprises to turn their attention to the likes of Freenet, that are inherently difficult to surveil, even when working with the physical ISPs.
So, you ask, how do police investigations compensate when the criminals they're after increasingly use anonymous, private, secure, distribute means of communication?
Aside from the standard drug detection at borders or traffic stops, money tracking, physical surveillance, informants, undercover work, district attorneys giving deals to catch bigger bad guys, or other, you know, physical police work that doesn't include being told who, when and where the deal is going to take place, I'm not sure how Police will be able to function.
Why is a world with ideally zero ability to prosecute child porn (to pick one) a world we should want to live in?
Closing one potential avenue for gathering evidence is a far cry from removing law enforcement's ability to prosecute child porn offenders (or any other crime, for that matter).
Look, I'm not saying that law enforcement shouldn't have legal tools at their disposal to gather information. They should. They do. But if someone is using strong encryption and has plausible deniability, then they win. That's just how it is. If they're going through a third-party service that can isolate that one user, then sure, great, by all means, get at that data via legal means. But if getting at that data means exposing all users of that service to breaches of privacy, then hell no. That's entirely unreasonable.
And if criminals are indeed clever enough to cover their tracks well enough to eliminate the possibility of law enforcement gathering evidence on them... well, that sucks, but that's life. That happened before the internet, and will continue to happen in spite of it.
If you want to stop child porn, maybe you should go after the source instead of the consumers? Even if you did stop the spread of the digital pornography you still have all the molesters and other physical abusers out there. Maybe we should expend resources on actual cops patrolling neighborhoods and keeping pedophiles in jail instead of releasing them and confining them into "safe" zones. That is if you really want to protect kids, and not hunt down perverts on the internet.
Yes, what about the children? If you care about the children, it's not the internet you should be worried about:
A few years back, the NSPCC (a UK child protection charity) released a study that claims that 75% of all child abuse, including sexual abuse, is carried out by a male adult related to or known to the family. The most likely abusers are the dad, brothers and uncles, followed closely by other male relatives and friends of the family. Random strangers come far down the list.
> Why is a world with ideally zero ability to prosecute child porn (to pick one)
Why do you think there would be zero ability to prosecute child porn? Given the above, it would seem that the best investment in prosecuting child porn would be in addressing the problem at source: Better monitoring of children's health and wellbeing to increase detection and prevention of abuse in the first place, rather than trawling through peoples communication.
Of course that won't happen, because parents will all believe that their spouses and relatives and friends could not possibly be abusers, and of course most of them will be right, even though reality is that they pose by far the greatest risk to your child. Random strangers are just even less likely to harm their children.
Before we sacrifice privacy even further, we should at the very least have the facts as to what effects altering the privacy balance could actually have. Is there any evidence that more aggressively pursuing child pornographers online makes much difference to actual harm as opposed to moral outrage?
Even so, even if we allow 100% privacy in communication, people get caught for child porn possession all the time without having law enforcement violate their privacy first: Spouses report pictures from their PC; people stupidly hand their PC in for repair and it pops up; people get caught actually abusing children etc. In which case their sources are often revealed. In which case the police can do actual police work, and set up stings or visit any sites that person has obtained child porn from, and get those sites taken down, and follow the leads to payment processors etc.
In fact, a number of large child porn sting operations were conducted in exactly that way: Unravel sites where the site itself was blatantly illegal, and then track down users/customers.
I don't know if the person earlier in this thread wants to be absolutist about the privacy, but for my part this is one area where I draw the line: If there is a legitimate case against one party to a communication, then I don't see a problem with having the police go through the logs of such a site, or the e-mails of anyone implicated and tracking down any regular users or customers of such a site - I don't see a good privacy argument against that.
But note how different that is from accepting interception of communication using a site that has entire legitimate uses, and where there is no evidence of wrongdoing in the case of most of the users prior to the government request to intercepting everything.
Even when there's no malicious intent, the chance of serious errors skyrockets when you start allowing these kind of tactics where criminal investigations becomes playing the numers too. Check Operation Ore, for example, where a long range of errors conspired to make what started out as a database of card transactions, some of which were to child porn sites, ended up being treated pretty much as evidence of purchase of child porn. Problem was tens of thousands of the cards appearing in the database were stolen, and a large number of the transactions were for legal sites; the resulting operation caused several wrongful convictions, and far more ruined lives and children taken out of their homes for the wrong reasons. The operation also has resulted in dozens of suicides (though it is unclear how many of the suicides were innocent people, if that matters to you).
It underscores that even if were are 100% ok with police invading our privacy if they make no mistakes, the importance of considering the potential damage of false positives must also be taken into account: If the crime being looked for is rare enough, it is perfectly possible allowing "dragnet" type surveillance to clamp down on the crime will cause more damage through investigative errors than it will prevent. This is another important reason to be careful about giving up on privacy.
If that is the case, why stop at child pornography. Physical child abuse like beatings present a far greater threat in terms of children impacted, but we aren't discussing the wholesale monitoring of every adult with a child, are we? Are the children that are victims of physical abuse not deserving of the same attention we give to those that are victims of sexual abuse?
There are alternatives that mitigate the problem without centralized government involvement and dragnet surveillance. Opting for a law enforcement-based government solution from day one pretty much eliminates all creative thinking on how the damages from child pornography can be reduced to acceptable levels.
I emphasize acceptable levels, because the correction of all ills and dangers carries with it diminishing returns. If you want to completely eradicate something, it's going to cost you an order of magnitude more to eliminate the last 20% of the problem than the first 80%. Costs here a both financial and freedom-wise. The in both time and freedoms for services (telecoms, etc.) and places (homes, offices, etc.) is good enough for probably 80% of the benefit. Beyond that the cost is just too high for too little benefit.
You can also get 80% of the benefit by just identifying the small subset of children that present the highest at risk group and providing special services for the monitoring and social support for that group. No need to drag in the rest of society.
First, child pornography itself isn't really the problem, but the problem we focus on because its visible and elicits emotions. We focus on the end product, but the root problem is how child pornography is made. Child porn doesn't only exist in electronic form. Getting convictions of users of child porn isn't going to protect any children. We know undeniably that a market exists. Going after the buy-side is never going to have a meaningful impact, because there are a lot more buyers than creators and the amount of effort to bag a few consumers here and there is a drop in the bucket and will never be sufficient to reduce demand enough that there isn't incentive for the supply side to keep producing it. If you make it harder, then the price just go up. Profits don't change.
Personally, I would like us make the consumption of child pornography legal but keep it illegal to manufacture or distribute child pornography. By keeping the buy side legal, you gain enormous amounts of visibility into the market dynamics that don't exist, when you force both sides to go underground making observation difficult enough that the privacy of many innocent people needs to be compromised to make policing even marginally effective. Furthermore, it would still be considered taboo and a sickness and we'd encourage purveyors of child porn to seek psychiatric care, where we would counsel them on their addiction and show them the damages caused by their consumption. To get access to free psychiatric care, we can solicit cooperation from the buy side in discovering who is operating on the sell side. This removes a lot of trust in that market, because instead of both sides being driven to trust one another for fear from prosecution of the same law enforcement entity, the sell side will end up with a healthy mistrust of their customers.
The fastest way to destroy a market is to destroy trust in that market. TBH, I'm surprised we don't really spend any attention on how you effectively undermine markets like we spend time on how to foster liquidity in markets and making them more efficient.
> His argument is clearly that people have a right to privacy.
Except there is no right to engage in total privacy. There is a right against unreasonable search and seizure. But that's hardly a right of total privacy.
Maybe his argument is that he thinks people should have a right to total privacy?
> Except there is no right to engage in total privacy.
There is, in practice, an absolute right to privacy. If you combine strong encryption with plausible deniability, you can reliably secure information from law enforcement. There is nothing anyone can do to access it against your will. You can always make the plausible claim the information does not exist and/or is inaccessible to you.
Does asking for a site's private SSL key sound like a reasonable search? I realize "reasonable" is entirely subjective, which is why I don't put much faith in out justice system.
You sound astounded that someone on the receiving side of legal action is trying not to cooperate. Next you'll be stating that him hiring a lawyer is proof of non-cooperation and evidence of guilt.
If you got to do overbroad things every time a defendant was "non-cooperative" it would apply to every single court case.
See my comment here[1]. While I'm not normally a government apologist, from the unsealed court documents, it appears that they did everything by the book here. The original order was for metadata related to a single, specific named account. There were several follow up orders and court proceedings before the request was broadened to turn over the SSL keys.
I'd claim that not producing evidence in response to a lawful subpoena and court order is proof that he's guilty of contempt of court[2].
[2] There are lawful ways to resist such an orders - you file a motion to oppose in the case. While I don't have access to PACER to confirm that no such motion was filed, the judge's orders have no mention of such a motion in the established facts.
dlgeek explains the entire situation better than I. However, I wanted to apologize for poor wording. It wasn't that he wasn't trying to cooperate. Rather, than it seemed like he was trying to be unreasonably uncooperative to what was a reasonable and lawful order (starting with the information/traffic of a single individual). The distinction is important, I think.
Putting aside the vague term reasonable for a moment, we should really examine that the fourth amendment states "... and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
I think we need to analyze "persons" or "things" in an electronic light... could things be roughly analogous to "a mailbox" and could persons be "a person's electronic mail account"?
You can't just state on your warrant "I want all of the things!", you must stipulate that "I want Ben's mail account and logs of all his activity on your service." If there is no way of extracting that information without compromising everyone else's privacy, does the law state "in cases like this, the constitution should be violated to satisfy the terms of the warrant"? or does the law state "the terms of this warrant cannot be enforced without breaching the constitutional rights of at least one other party and thus is illegal"?
It's my guess (and I'd like to emphasise the word guess as I really have no idea), that any reasonable judge (that wasn't on the payroll of the NSA or FISA court) would deem this is an illegal search warrant because it's in violation of every other Lavabit user's fourth amendment rights.
Anyway, that's all by-the-by. The judge who is attempting to enforce this ridiculous debacle (and I use the word ridiculous in the sense of hilarity because every new development is a source of mirth) clearly doesn't give a shit about anyone's fourth amendment rights, and he's pissed at Levison's continued contempt of court so he's stamping his feet like a spoiled little four year old who's just been told he's not getting Dunkin' Donuts for dinner, while getting a schooled by an internet Hero... with a capital H.
That's perfectly valid, since those examples were first trotted out prior to that with no argument. If it's so obvious why we should treat those as special cases, it should be trivial to explain why.
> That's perfectly valid, since those examples were first trotted out prior to that with no argument.
Except the burden lies with those wanting to add a right to privacy to the list of rights we have. The right to privacy simply doesn't exist. There is a right against unreasonable search and seizure. But that's hardly a right of total privacy.
> If it's so obvious why we should treat those as special cases, it should be trivial to explain why.
I think it's perfectly reasonable to ask you why you want to change the laws and protections we have now, and I think it's perfectly reasonable for you to be required to stand up to the questions being asked.
You've posted at least a dozen responses in this thread and it is plain you have no idea what you are talking about in almost every one of them. Are you unfamiliar with the 14th Amendment?
the Due Process Clause is also the foundation of a constitutional right to privacy. The Court first ruled that privacy was protected by the Constitution in Griswold v. Connecticut (1965)
I guess we could forgive you for not being aware of the 14th Amendment - it's not cited much. But it was the basis of Roe v Wade, arguably the most famous Supreme Court case ever:
Decided simultaneously with a companion case, Doe v. Bolton, the Court ruled 7–2 that a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion
Sticking with Wikipedia - they have a whole article on the Right to Privacy. As related to the United States:
The U.S. Supreme Court has found that the Constitution implicitly grants a right to privacy against governmental intrusion.
It is unbelievable that someone like you will post a dozen responses to people filled with such unbelievably false statements. It is no wonder people are downvoting you.
You're right, but that doesn't make me wrong. Only that we are saying 2 different things. I didn't mean to imply that you have no expectation of privacy, only that privacy as a whole does not exist. For example, in public, I cannot reasonably suggest that my right to privacy trumps your ability to overhear my conversation.
After all, while you elected to quote one sentence, in context, it's clear that I'm making a distinction between a total right to privacy and limits to intrusions into privacy.
"The right to privacy simply doesn't exist. There is a right against unreasonable search and seizure. But that's hardly a right of total privacy"
So, basically what I'm saying is that their is no simple right to privacy. Actually, the text you quote provides a link that explains it better than I obviously did.
"Although the word "privacy" is actually never used in the text of the United States Constitution,[20] there are Constitutional limits to the government's intrusion into individuals' right to privacy."
These limits protect aspects of privacy, not privacy itself. And that's an important distinction, especially in this context. If you explicitly had a right to privacy, one could argue that search warrants could never be legal, as your rights to privacy were being violated.
I 100% realize how my statements in that manner could be misinterpreted, and I don't fault you for challenging me on that.
> It is unbelievable that someone like you will post a dozen responses to people filled with such unbelievably false statements.
If that's the case, why wouldn't you assume you were misinterpreting what I said?
As for people down voting me, don't be too harsh on them for misunderstanding me on this context. As I said, it's reasonable that they could think that. Luckily, you made it clear you couldn't believe I would post something so obviously false, and looked for clarification rather than just assuming. =)
If they are to be brought into a conversation not specifically about them as examples, yes.
Whether it's wiretapping or execution, when referencing those crimes you're making a personal evaluation of the actions without referencing any criteria for for how you judged them. To do so is to play to people's emotions about the crimes you referenced rather than the actual item for discussion, which is when wiretapping is justified, and specifically for what crime.
I view it as equally manipulative to state "we can all agree that murder is bad and wiretapping should be justified in some cases" as to say "we can all agree that changing traffic lanes without signalling does not justify wiretapping" when the actual question has nothing to do with either crime.
This is just a case of Godwin's law writ small, so it's harder to spot.
(An alternative argument is that for any extended powers of the state, we should have statistics to back them up. If wiretapping is ineffective for a crime or it's benefit is outweighed by it's downsides, maybe that should be taken into consideration. In the end, I'm basically I'm for questioning generally unquestioned positions.)
I would like to contribute the point to back this up that the question isn't really e.g. "is it OK to wiretap murderers?" Actually, it's "is it OK to wiretap suspected murderers?" And the second one is a vastly greater burden. It means we need to trust the guys who decide who to suspect. This is far from a solved problem, of course, as most people agree that some justice system is necessary, and it's a hard line to draw, but the point is, one must be extremely wary of granting broad powers over arbitrary people without requiring an amount of evidence proportionate to the damage exercising those powers will do to them.
In short, if you just say "who cares about suspected murders, probably most of them are murderers", you are leaving a lot of discretion over your life and the life of those in society around you into the hands of those whose power it is to enforce the law. And while they might be the best people for the job, ultimately they are just people too.
That's not a very complete argument.