From: jim bell <jimbell@pacifier.com>
Date: Mon, 22 Apr 1996 11:23:54 +0800
To: Steve Reid <steve@edmweb.com>
Subject: Re: 5th protect password?
Message-ID: <m0uB87E-00092FC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 02:13 PM 4/21/96 -0700, Steve Reid wrote:

>No need to be so defensive, Mr. Bell... I didn't say that samples used to
>detect drugs are OK under the constitution. I just said that, IMNALO,
>samples taken for identification have always been okay. The samples taken
>to detect unauthorized molecules are the exception to the identification
>rule I noted. I do agree that requiring people to provide such samples to
>detect illegal substances (as I said, a recent development) is wrong. 
>
>I wasn't trying to score points for either side of the debate, I was just
>pointing out that _before_the_war_on_drugs_, the samples listed in the
>previous post were used exclusively for identification.

And _my_ point was that before about 1900 or so, the various 
"identification" (your distinction, not mine)
examples that were listed by the SC were not demanded, and not regularly 
demanded.  I came to what I considered (and still consider) a reasonable 
conclusion: The Constitution does not support (and certainly does not 
OBVIOUSLY support) exceptions based on identification principles.  I don't 
doubt that somebody could have presented this (the "identification" aspect) 
as intended to sound like a reasonable exception; the issue is whether this 
is just an opportunistic justification or whether there is some logical 
basis for this position.


That latter conclusion would have been stronger if there had been no 
exceptions to the 5th amendment other than identification techniques. But 
the "straw that broke the camel's back" principle is at work here:  Having 
added the drug-testing issues to the mix, the fig leaf has dimished in size, 
and it becomes harder (and, in fact, impossible) to explain why the natural 
interpretation of a document written in 1783 could be so CONVEEEEENIENTLY 
re-interpreted so as to allow exceptions which were did not become technologically 
"interesting" for 150-200 more years.  The most obvious interpretation is 
that whenever an investigative technology that the cops would like to use 
appears, and if that technology appears to be proscribed by some 
Constitutional protection, the Constitution is automatically re-interpreted 
to allow it anyway.  The exceptions occur only when the new technique is so 
unreliable (polygraph, for instance) that certainty of test results can't be 
guaranteed.  This is particularly true when the technique has just as much, 
if not more, ability to cause an acquittal as a conviction.


The reason this subject is NOT noise is that the issue of providing decrypt 
keys is going to be a more and more important issue, and it is vital
that faulty precedents be replaced by good ones.  It would be very useful to 
be able to prove that the only reason these "exceptions" are considered 
exceptions is that somebody thought they'd be a useful investigative 
technique, and was pissed when it was denied to him.

Jim Bell
jimbell@pacifier.com