Just because the ability to hide information has reached unprecedented levels does not suddenly make the principles hard to grasp. Warrants have never been a guarantee of getting evidence. They are only permission to look.

Finding the answer to law enforcement being able to make these warrants useful while also maintaining rights is complex. Seeing a terrible solution as terrible is simple.

Is it unprecedented for a warrant to fail? People used to burn paper correspondence all the time.

Ok, so warrants fail. There are cases where people are held in contempt of court, essentially for life. Is that a good resolution to warrants being broadly, commonly enforceable? Those people aren't convicted of the crime they were accused for, in some cases they may have even forgotten the encryption key.

Indefinite contempt charges are why forcing someone to hand over a password, encryption key, submit to biometrics, etc. needs to be banned.

The current state of affairs is a clear violation of one of the US’s founding principles: “innocent until proven guilty” (and also the 5th amendment).

Remember, the Bill of Rights were tagged on after the Constitution. The Constitution establishes what powers the Government could and couldn't have, purely in its relationship with the constituent states. The Bill of Rights filter out what it doesn't. And in its vagueness, the Constitution claimed quite a lot.

The ability, power, and right to investigate crimes is certainly reserved to both the states and the Fed. Government in the Constitution.

The ability to not be forced to participation in one’s own prosecution is one of those rights the Constitution guarantees.

The fact that modern life typically entails recording and documenting almost every single thing you do during the day, and yet law enforcement complains about “going dark”? Utter nonsense.

People have never been more widely tracked, or more widely accountable. The absolute last thing we have is a privacy epidemic.

The government has the right to investigate crimes. They do not have a specific right for defendants to keep records of what they did wrong or to be provided that evidence, outside the context of business regulations which require specific paperwork be maintained.

And by the way, the Constitution specifically enumerates what powers the Federal government has. All Else is reserved to the States, or to the People.

Which is why we weren’t supposed to need a Bill of Rights in the first place. The Constitution doesn’t enumerate Speech or Assembly as something the government can control, therefore it is not. However the Framers didn’t all agree we shouldn’t go and list a bunch of things just in case, except that it might make people think if it’s not listed then maybe it’s not a Right?

It's strange to me that this isn't somehow covered under the 5th amendment. How can you be compelled to provide something (say, an encryption key) that might incriminate you?

The ability to hide things has reached unprecented levels?

Yes, it should be the case. No one should be forced to testify. That's violating free speech. Giving up information that only exists in your head (location of keys, or a passphrase) is testifying.

And the entire concept is backed by State violence. People are only compelled to testify under threat of violence in some form. This form used to be open torture, but we've found ways of outsourcing the torture to other criminals in order to wash the State's hands clean of blood.

Sometimes we need to catch a bomber. If you ask me, that problem is only getting worse and "sometimes" may turn into "often". However, we can't risk a journalist or political activist being caught in the jaws of the system while attempting to expose the State's secret crimes. And less severely, the State doesn't have the right to know what your shopping list was last week.

The entire crux of this argument revolves around the fact that at one time it was easier to do this stuff thanks to wiretapping laws and banned encryption, but now it's harder. However, the wild west of the 70-90's isn't the base line for sensible policies when it comes to digital intrusion of your life by the State without reasonable cause.

I agree, forcing people to testify to provide their keys is probably where our system will get stuck on this for good. That's a bad line to cross, and I don't think we'll cross it if we remain a lawful country.

I say this below, though, when people refuse to serve access to a lawful warrant, there are now multiple cases where people will be held in contempt of court essentially indefinitely, likely for life. The court is certain that the information necessary to convict them exists, but is being vexatiously withdrawn by the suspect.

I don't really think that's a good end. I think holding people in contempt that long is a system failure. What do we do about that? Just release people when they hide evidence that they can still have full access to once they're released?

I think it's been easier to do this stuff since the founding of the government, but our government does have certain powers, lawfully enacted by the wills of all of the states for the betterment of society. If some of those powers can't reasonably be enforced, and other, less lawful, more coercive powers arise in their absence, I think everyone loses.

We have to adapt our laws to reality; not the other way around. The reality is that even compelling me to produce a hard drive is backed by State violence.

So we must accept that a certain amount of State violence is necessary to keep the peace. Think of a schoolyard Bully going unchecked; it takes someone standing up to them and enforcing the threat of future violence in order to end the actual occurrence of violence.

But there is a clear legal framework here:

I don't have to produce any materials to the State without a warrant acquired by due process (and not parallel construction). This is my protection from unwarranted search and seizure as outlined by the US Bill of Rights.

However, I don't have to tell you where it is. I can't prevent you from taking it, but I have the right to not have to testify. Because the enforcement for my testimony comes from State violence, and we learned from the Dark Ages what happens when we allow the government the power to extract information with force.

It would be quite ironic if, in our quest for not "going dark", we enter the Digital Dark Ages.

Perhaps we need to address the definition and scope of lawful warrants in this case. Not a lawyer (clearly) but there is a big gap between "requesting data (that may be gibberish bytes when encrypted" ("here's the hard drive, officer!") and being provided that data, vs. requesting data that also requires decryption using something only known to the person being served."

This seems like a pretty clear distinction to me that could be argued in court. But, as I said... not a lawyer.

That isn't the failure of warrants, our rights, or any other aspect of the legal process. That's a failure of law enforcement. They can't break encryption, sure, but they also can't read the private thoughts of individuals - yet somehow they've figured out ways to get the information they need most of the time.

A great solution in many of these cases would be to work alongside companies like Apple to implement more products like Face ID. With Face ID, they can take a few pictures of a person, 3D model their face, open the phone. It's an easy thing with the right resources. It's a technological equivalent of interrogation. The same can be done in other contexts, they just need better hackers, better investigators, and more resources on their side.

What you posit with interrogated Face ID is a method of hacking encryption. You've provided a backdoor, that is the person's face. Previously the suspect's phone was encrypted, now the encryption is broken against the suspect's intent. A warrant was used to break the encryption.

Do you see what I'm getting at? You came up with warrant-breakable encryption, but didn't call it that. This is why it's not an easy question-- the solutions are nuanced, and some are a lot uglier than others.

Maybe? There's a huge distinction between warrant-breakable encryption as a default (because it's easier) and enforcing that nobody can encrypt data unless it's encrypted using biometric data (or other information that is available outside the head of a user)

Furthermore, there was a falsehood of security to begin with. You shouldn't legally be able to say the data is safe when it isn't safe to anyone with a couple photographs.

> With Face ID, they can take a few pictures of a person, 3D model their face, open the phone.

Note that Face ID is intended to be resistant to this kind of attack.

Sure, but the only way to build resistance to it is to expect more detail in the scan and they can't do that without making the system less convenient for people who grow a beard, wear sunglasses, etc. It can't go pore by pore on the person's face anyway, the infrared scanning process where it projects dots onto the face just isn't that advanced. It might be resistant, but it's hardly a challenge to someone with government levels of resources.

Again, as far as I am aware, Face ID is intended to be secure against concerted effort to break it. I have not heard of anyone coming up with a serious attack against it, though I'm curious to hear if you have.

The question isn’t if warrants should work but whether or not anyone is able to have secure communication. This runs directly counter to all of the privacy law stuff being enacted and discussed. It means government officials and agencies get less or insecure communication too. It means clandestine intelligence agencies don’t get to mask their communication in a sea of other encrypted communications.

People are acting as if unbreakable encryption and secure computing is a given. It isn’t. It is extraordinarily difficult and in nearly all use cases not foolproof.

The warrant excuse is fairly ludicrous anyways. We now have vast information pools of where people have been and what they were doing. We have DNA evidence. Law enforcement has never been easier in the history of human civilization.

Of course it should be the case. There are plenty of ways to make information hard to recover, and if we're going to ban encryption I think we should take a hard look at fire as well.

Fire is irreversible. Once the original good is destroyed, it can't be read or written to by the burner or anyone else. After evidence is destroyed, it only exists in (human) memory.

Encryption is reversible. The information encrypted can be retrieved, changed, shared, etc. It proves itself potentially continually useful to the person who would hide evidence.

Encryption is irreversible if I throw away the key, just as burning paper is irreversible once I light it on fire.

Ok, so a suspect tells the judge under oath that they encrypted the evidence, and the key is gone, as if it had been burned.

Just as in burning with a fire, that suspect can be charged with willful destruction of evidence or obstruction of justice, contingent on mens rea.

The judge may be unlikely to believe that the data is irretrievably encrypted, just as they may be unlikely to believe all records were burned.

A warrant is nothing more than an authorization to conduct a search and/or arrest. It is not a guarantee of finding what you’re looking for. Warrants work fine.

I think it is a simple question. There have also been cases where a judge issued a legal warrant that was impossible to enforce because the information was physically destroyed.

Should it be illegal to burn a piece of paper?

The FBI and our police forces have been complaining about the 'going dark' problem for years. But in reality, it is far easier today to spy on or collect data than it has ever been before. If the argument was that our data collection was substantially lessening, maybe we could have a discussion about that.

But data collection is substantially expanding, and the FBI is essentially saying, "yeah, but it's not expanding fast enough." The FBI is phrasing this as a complicated question because they're saying it's a choice between the status quo and "the FBI can't listen in on anything." But in practice, if you look at the direction surveillance capabilities are heading, the real choice is between the status quo and "the FBI can listen in on everything."

And that's a really easy question to answer. Of course we shouldn't give up all of our freedoms just so the police can always access everything they want, all the time. Of course people should be able to exercise personal freedom even if it occasionally means a police investigation is hampered.

The FBI wants to phrase this as a choice between encryption and anarchy, but given the direction government surveillance is headed, encryption is the middle ground position. What the FBI wants is the ability to access anything they can get a warrant for, no matter what, for any reason.

And I guarantee once they got that, the next "complicated question" would be whether or not warrants were hindering their investigations too much.

I addressed the fire metaphor below. Destruction is irreversible, encryption is reversible, in short. But to answer your question, yes, it can be illegal to destroy evidence.

I agree with you, this is a problem. What I advocate for to anyone who'll listen is to encourage more use of warrants, and sharply curtail the use of subpoenas. Subpoenas allow for bulk collection, and much much much more violation of the 4th Amendment happens under bulk subpoenas than it does under warrants.

Ignoring that encryption is also irreversible if you throw away or forget your key, is the distinction between fire and encryption that, "we could get at the encrypted data, so therefore it's different and we should be able to"?

That doesn't make sense to me. If your argument is that every warrant should be executable, no matter what, then both fire and encryption block warrants.

If anything, fire is worse, because at least encryption is reversible. If you burn something, we can never get it back -- that makes fire way more risky and dangerous to law enforcement investigations, so I would expect it to be much more highly regulated.

Yes, that's what's different.

The canonical example here is child pornography. Consumption and distribution is a crime. If a person destroys it before the state sees it, well, that may be destruction of evidence, but the state will never know. If the person can have full access and go back to consumption and distribution, then justice can't be done, and most people agree it should.

I don't think that any warrant should be executable. I'm saying this problem is complex, people are coming up to ways to address it, and they're not the utopic visions of personal privacy-- they involve unconvicted detention, coercion, etc. Miscarriages of justice.

> and they're not the utopic visions of personal privacy

This is sort of going back to what I was saying in my original post though. Encryption isn't a utopic vision of privacy, it is the middle ground. It's not harder today to catch child pornographers than it was before the Internet existed -- it's easier. The fact that we have encryption is being balanced out by the fact that we also have video surveillance, and remote exploits on Internet connected devices, and more payment tracking.

The FBI is not looking for a sensible, middle ground between privacy and bringing people to justice -- the argument they're making is, "if even one criminal escapes, that's too many."

Again, if we were in the opposite situation, if encryption did really mean that we couldn't catch criminals any more, then I'd be more inclined to say this was a complex problem. But the 'going dark' problem is largely a myth; with the advent of the Internet, it has never been easier to monitor citizens or access their data.

This is only a difficult question if it is genuinely a question between anarchy and encryption, but we're not even close to that being the choice we have to make.

You may not be of the opinion that every warrant should be executable no matter what, but when the question is put into the context of modern surveillance, it seems obvious to me that this is the FBI's stance.

I address this upthread, but when you talk about how it's easier to bring people to justice easily in the world today, frequently that ease results from over-broad subpoena or bulk-collection powers. I think that warrants give much more freedoms to us as individuals, including the freedom to be private. What I would like to see the government systematically encouraged at every step to use warrants on criminality, rather than subpoenas for potential of criminality. So in that world, I think warrants need to be more useful.

> The canonical example here is child pornography.

This is always the example used to justify anything unreasonable to suspects. For me it's an automatic argument loser, like Godwin's Law.

I'm not using to suggest unreasonable actions to subjects, I'm using that example as a clear example where the data is, itself, incriminating to possess or transact.

In this case you can replace it pretty easily with any sort of material that’s illegal to possess, such as intellectual property that you do not own the rights to.

I don't think this is helping your argument, especially on HN. "We need to end privacy to preserve Warner Brothers and Disney profit margins"?

(If I have a DRM encrypted file that I don't have the keys for, am I now committing two offences? Are law enforcement entitled to a free copy of the HDCP keys?)

That's not the point: s/DRM/any sort of "illegal" content/g. Note that I am not discussing (or providing my position on) whether it should be possible to own "illegal" content, I'm just clarifying txru's argument.

> most people agree it should

Mob mentality doesn't make a very good government, especially when manipulation of information comes so easily. No matter the crime, we can't start the basis of infringing upon an individual's rights on "well most of us on the island agree we should do this". William Golding illustrates this well in Lord of the Flies.

Is this not similar to hiding child pornography and not disclosing where you hid it, which I believe would be protected under the 5th amendment?

I don't think the fire metaphor is right exactly because encryption is reversible as you say. A better metaphor would be hiding information and only you knowing its location. Knowing a password to decrypt information is functionally similar to a situation in which you have hidden documents and only you know where.

In the case of hidden documents, warrants/subpoenas are used to compel their production. Certain actions (like holding someone in contempt) can also make cooperation more likely (though not guaranteed).

Why do similar procedures not suffice for encryption?