From: attila@primenet.com
Date: Tue, 15 Oct 1996 14:05:49 -0700 (PDT)
To: Duncan Frissell <cypherpunks@toad.com>
Subject: Re: "Right to Privacy" and Crypto
In-Reply-To: <3.0b19.32.19961015115525.0067560c@panix.com>
Message-ID: <199610152205.QAA03946@infowest.com>
MIME-Version: 1.0
Content-Type: text/plain


In <3.0b19.32.19961015115525.0067560c@panix.com>, on 10/15/96 
   at 11:57 AM, Duncan Frissell <frissell@panix.com> said:

-.>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:
-.
-.I agree with your analysis.  It certainly matches what I was taught in
-.law school.  The rhetorical point I was making however is that a
-.*practical* not constitutional right to privacy exists as long as your
-.questioner eschews torture.  

        I disagree. the law school concept which I remember (given that 
    it was thirty-five years ago) was that privacy, although stated in
    many manifestos as a right, even an inalienable right, is solely the
    amount of privacy and freedom of invasion as granted in the Bill of
    Rights, and that in turn is subject to interpretation by the courts
    as it applies to a series of cases --i.e. the principal is stated
    in the Bill of Rights, but the case law continues to evolve and 
    shape the _limitations_ of government intrusion into your privacy 
    (actually, the decisions have generally reduced your privacy).

        BTW, this was McCracken's course in constitutional law at 
    Harvard.

        As we are aware: 

            the fifth has been destroyed by being held in contempt.

            the fourth has been gutted with all the no-knock cases.
        
            the second is abridged by registration, prohibitions, 
            licensing, disenfranchisement, etc.  the only thing  they 
            have not done is quarter troops in our houses...

            the first sort of stands, but consider that the right
            to privacy and the freedom of speech should also include
            the right NOT to speak --that has been gutted by the
            rulings on the fifth.

            no point discussing the rest of them --they're mostly
            ignored or cases are channeled into 1, 2, 4 and 5.

        of course, the one I object to is 14 which basically steals our 
    unlimited rights to our state citizenships.  after six years doing
    the real dirty work of deep-black ops in the 60s --I never again 
    wish to consider myself a "national U.S. citizen."  Thank you, my 
    Utah citizenship will do just fine!  and, no, I do not vote in 
    Federal elections.

        Eschewing torture, for instance, is a limitation of the 
    prosecutorial "effort" which can be applied in interrogation. For
    instance, the right to representation was not established with
    the approval of the Bill of Rights --it was a much later Supreme
    Court which said counsel _must_ be provided, which further expanded
    to "...the accused has a right to _effective_ counsel" (which, of
    course, is a joke considering the case load of the public 
    defenders who plea bargain or let it go to conviction).

-.I think it is useful to point out -- in response to government types
-.who assert that "there's no absolute right to privacy" --that they 
-.have actually set aside a zone of privacy by their rejection of 
-.torture as an interrogation technique.
-.
        Even though the Miranda act requires a "prisoner" to be read his
    rights (rights? Captain Kirk?), it does not preclude an overwhelming
    force of SWAT team members which has just crashed through the 
    house unannounced (let's not start that thread again) from rounding 
    up a man's family, naked, or close to naked, and start putting
    handcuffs on women and children.  Any man's (worth his salt) normal
    reaction is: "What the fuck are you assholes doing to my wife? --she
    had nothin' to do with it!"

        Bingo! The victim, innocent or not, has just admitted he is 
    guilty of something.  presuming they read the victim his Miranda
    before they starting abusing and terrifying (not far from torture is
    it?), the "admission of guilt" is fully qualified evidence, despite 
    the fact it may or may not have any relation to the case at hand 
    --and it will be read to the jury by some straight faced liar, sworn
    to by one of the belligerents whose paycheck is justified by his
    kill ratio.
        
        BTW, if they had not read 'em Miranda, they'll stand up and 
    swear they did anyway.  and who do you think is believed?

        And that is just the beginning --yes, they may be required by 
    law to grant you a phone call --but when?  in the federal system, 
    even if they have a detention area available, they are not required
    to give you phone call until they have booked you in the
    state/county holding facility (or even an MCC) --you can even be
    taken before the magistrate to determine bail and to be charged and
    still not have a telephone call. And, they can delay the hearing,
    and therefore the call --the favourite trick is to slide it over 
    the weekend. You have just appeared before the magistrate without
    the representation you might have been able to contact  --and they
    are not required to provide a public defender at a charge hearing.

        that is not "torture?"  personally, I consider physical torture 
    a wasted effort in today's world; but nothing outlaws emotional 
    terror, and being held without communication, with various federales
    passing you back and forth and asking for your name, etc. and
    accusing you of whatever, and making comments about your family,
    your history, your race, your religion.  falsehoods, falsehoods, and
    more "why did you do that? --didn't you know you could go to jail
    for life?  --right know we only have you charged with six counts at 5
    years each, but there are others.  --why don't you come clean?  --we
    can let you plead on just one charge which will cost you the 5 years
    at most --21 months with good time..."

        that is just the beginning of psychological torture. If they are
    criticized, whatever, the prisoner ends up in the "hole"  --despite 
    the fact certain standards are required by law, some holes are
    literally that --pitch black with one drain in the center of the
    floor; buck naked, including women (they spill the beans faster);
    two meals a day of a couple slices of bread, a slice of junk baloney
    [sic] if you are lucky.  why the hole?  dangerous in the general
    population; whatever. denial of privileges: visits, telephones, even
    legal visitation until "hole time" is up.

        think I'm putting you on?  want a list of a few jails which have
    facilities worse than what I described?

        no they cannot physically torture, but they can put your 
    intelligent, educated, civilized little white ass in with some some
    real sweet boyfriends, or sadists, or racists who are just waiting
    for revenge, or just plain killers "--oops, made a classification
    error;" and the tag on your toe says: "john doe #1276549860"

        and nothing prevents them from talking about poor Harry who did 
    not cooperate...

-.What this does is to remind listeners that coerced speech has an
-.unsavory history and it turns the argument from one between absolute
-.positions into one in which we are just arguing which sanctions should
-.be applied when.
-.
        I still do not agree.  in other words: ...'which' sanctions can 
    be legally applied when somebody is looking.

-.DCF

-."Note that many governments have officially given up rape and torture as
-.sanctions.  (These were once universal.)  All we have to do is get them
-.to give up murder, imprisonment, and robbery as sanctions and we'll have
-.civilized them completely."
-.
        although I will certainly agree with your tongue-in-cheek 
    comment...

        wish to check the cases of rape while in custody? --don't forget 
    to include sodomy by bubba, foreign objects for women, etc.  did 
    law enforcement do this?  indirectly, yes, by failing to protect the
    accused.

        reinstate physical torture by the state --at least you'll live
    through it!  they need you in court to parade as an example before
    they hustle you off for reeducation.

            attila

    P.S.    you have just heard only ONE of the reasons I refused to 
            ever consider practicing law in the United States; land of 
            body trading: lawyers with lawyers, lawyers with prosecu-
            tors, judges with an agenda, etc.  BOTH civil and criminal.

            I'm sure Brian Davis, as an ex-federale will disagree with 
            me --but he was never involved with the gestapo who live 
            and die by their kill ratio.  and the prisoner soon learns to
            keep his mouth shut.


--
  "I don't make jokes. 
    I just watch the government and report the facts."
        --Will Rogers