From: "Timothy C. May" <tcmay@got.net>
Date: Fri, 11 Oct 1996 11:08:09 -0700 (PDT)
To: cypherpunks@toad.com
Subject: "Right to Privacy" and Crypto
In-Reply-To: <3.0b19.32.19961011111653.008d4a04@panix.com>
Message-ID: <v03007802ae84487929df@[207.167.93.63]>
MIME-Version: 1.0
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At 11:19 AM -0400 10/11/96, Duncan Frissell wrote:
>At 06:17 AM 10/11/96 -0700, Declan McCullagh wrote:
>>
>>Yep, seems right to me. While I share some part of your position on the
>>undesirability of wiretapping, Uni's remarks about it being "firmly
>>entrenched" in the minds of L.E. and Capitol Hill are quite on-target.
>>
>>Few here in DC believe in an absolute right to privacy.
>
>In actual fact, most public officials profess (if not practice) a belief in
>an 'absolute right to privacy.'  That is, they profess opposition to
>torture.  They believe that coercion for testimony should be limited to two
>years imprisonment (or less).  There is no *official* pro-torture lobby in
>America (though in practice torture does occur).
>
>We've already established that they believe in an absolute right to
>privacy, we're just arguing over how far beyond the brain that extends.
>And since we control our brains and we control our i/o we can probably
>expand that zone of privacy in practice.

I believe any arguments based on a "right to privacy" are shaky. One will
find no such right clearly enumerated in the Constitution, though various
things seem to implicity reference such a right ("secure in one's papers,"
"quartering troops," and the various First Amendment issues).

Judge Bork--whatever you may think of him--was probably correct in pointing
out that there just is no specific "right to privacy," at least insofar as
protecting one against various laws. (To wit, one argument for abortion
rights was a "right to privacy"--Bork believed this to be ungrounded in
actual Constitutional law...and it's pretty clear that one cannot, say, use
illegal drugs on the grounds that there's a "right to privacy.")

I'm of course just a layman, not a law professor or scholar. But I feel it
best that we not invoke a "right to privacy" to protect our crypto
abilities, when such a "right" apparently does not exist.

However, certain things which _look_ like a "right to privacy" do exist:

* the aforementioned Fourth Amendment freedom from unlawful searches and
seizures, requirements for warrants, and "secure in one's papers." This
would pretty much preclude a requirement, for example, that all houses have
curtains removed (or removable by police surveillance teams) so as to
"monitor" what is going on inside houses.

(I've been using the analogy of Clipper and key escrow to window curtains
that can be made transparent when the government wants them to be
transparent, and probably without the residents even knowing that the
"transparency mode" has been remotely enabled. Ordinary people, like my
family members, immediately understand this and are shocked. I then
elaborate that it's as if the government could secrety gain access to
diaries, letters, television habits, etc. without the occupant of a house
even knowing it. This usually sours them on the USG rhetoric about the need
to fight crime with key escrow tools.)

* the freedom to speak as one wishes without government permission or
sanction, save in limited situations covered by specific laws (a big
loophole, I grant you) says to me that I can converse in Ubangi, in Hindi,
in Pig Latin, in RC4, or in Tim's Secret Language without anybody in
government telling me I must converse in a language _they_ can understand.

(The loopholes are for the usual things: espionage, sedition, suborning
perjury, extortion, and various other litigatable examples. A well-trodden
area of discussion on this and other lists. But in none of these examples
is there support for a government ability to tell citizen-units they may
not use the language of their choice in communicating with others, in
writing diaries for their own use, etc. (The "English-only" laws have to do
with communicating with authorities, tax agencies, schools, etc. I'm not
saying I support them, but they don't affect Alice and Bob communicating in
Urdu or Prakelitine.))

* The "freedom of association" provisions also provide a kind of support
for a generalized "right to privacy."

I think Ronald Dworkin's new book on law has discussions of this "right to
privacy" issue. I plan to read it soon.

Using this "right to privacy" line of reasoning must be done very carefully.

I would rather use First Amendment arguments if the USG tries to tell me
that I may only write my diaries in a key escrow language form, or tries to
tell Alice and Bob that they may only use a specified form of communication
between themselves. "Crypto as speech" seems well on its way toward being
established (e.g., Judge Patel's ruling, and the Supremes should get the
case one of these years).

--Tim May

"The government announcement is disastrous," said Jim Bidzos,.."We warned IBM
that the National Security Agency would try to twist their technology."
[NYT, 1996-10-02]
We got computers, we're tapping phone lines, I know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1,257,787-1 | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."