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?