> extension of the person’s mind

That's exactly what our computers are. However, it's a mistake to think the government cares or can be persuaded to care.

People in power simply cannot tolerate the notion that something is out of their reach. Encryption is just mathematics but it can render entire governments and militaries powerless. The fact common citizens have access to something like this is an affront to their power.

What's happening in practice is a politico-technological arms race: governments make laws, people make technologies that neutralize those laws. With every iteration, the state must become more invasive and tyrannical in order to maintain the same amount of control over its population.

One more thought to clarify: in the future imagine we can repair brain damage with silicon-based implants. Will courts force their extraction or enumeration in criminal cases? My point above is that we’re already augmenting our minds with electronic devices, they’re just not implanted physically yet.

With the recent advances in brain imaging and particularly interpretation of that data in post-processing, I suspect we're not terribly far off from what we might as well call mind-reading machines.

The right to mental privacy will be a great battle of the 21st century.

Courts can already require fingerprints, iris scans, genetic material, etc for forensics.

I don't see why a machine organ would be any different.

Invading someone's mind has to be treated differently. I am not any of those things - but I am my mind.

The difference is not because the mind is different, but because we cannot infer its content otherwise reliably. (That's the problem with polygraphs, they are extremely unreliable relative to the importance of their purpose.)

If it were possible to do it with some sort of scan (reliably!), eventually courts would order those scans.

But that's kind of the point: the idea that sanctity of one's thoughts is not ensured, that really it's just a technological limitation, should be extremely troubling.

I know, but also that's reality. We were (and still are) pretty brutal when it comes to getting our way with the powerless.

Seems a lot more productive to use silicon as a feedback system for the brain via electro-magnetic radiation. Then it could function as scaffolding. Silicon isn't magically becoming more organic than a wet, soft brain full of DNA and other complex organic compounds.

I mean, that's one of the things we've been doing human experiments with for 30+ years now, via the wireless phone network and wifi. "Hold this radiation emitter next to your brain!" "New radiation patterns for the masses!"

How is that not analogous to a wall safe with my journal in it?

In my view it depend on two philosophical questions; does the journal exist when it rests in the safe, and does information exist when it is encrypted?

To simplify it, let's imagine a one time pad encryption. Does the information exist, or does it only exist in potentia? I think there is a good argument in favor of defining it only in terms of potential information as any one time pad can represent any information of the same length (or smaller if we accept padding).

With Schrödinger's cat experiment we could create a similar setup for the journal but it's questionable if we can still apply the perspective that the journal only exist in potentia. From the cat's perspective it knows if it exists or not. The encrypted information however has a more metaphysical environment and it is more questionable if it can be said to have a similar perspective.

We're talking about a 64-character password, not a one-time pad. Unlike a one-time pad, you can tell whether you've undone the encryption correctly. There is real information there that a third party can uncover given enough effort.

For simplicity sake we can see the password as representing a infinitive long stream for a one-time pad generator with the seed being the hash of the 64-character password.

The way programs detect if the encryption is successful is usually by looking at the first bits of information with the assumption that random collisions are unlikely to produce an expected pattern. Not all decryption systems does this however and some just give you the data as produced by the given key.

Both are however just technical details in how to turn the potentia of the random-like encryption data into information.

I'm not sure what you're trying to simplify here. If a third party can tell whether they've successfully guessed the right password, then the encrypted holds real information that the third party can learn with sufficient effort.

If it's just random bits that you need a one-time pad to decode, then there isn't any information without the decryption key.

If you're encrypting a hard drive, most encryption methods give you full certainty that you've correctly decrypted the text, in the same way that you'd have full certainty that you've correctly opened a safe and found the journal inside.

>If you're encrypting a hard drive, most encryption methods give you full certainty that you've correctly decrypted the text

I was thinking about mention it before when I wrote the above comment but it was already becoming a lengthy comment.

Truecrypt (now Veracrypt) is one of the more popular disk encryption software and was part of at least one US lawsuit in regard to revealing passwords. Truecrypt support a technique called hidden drives. The technique use the fact that free space is indistinguishable from encrypted data, so an attacker can never be fully certain if they have decrypted the whole data or just part of it.

A older and similar concept was/is utilized by Freenet project. Here the data get one-time pad encrypted using existing encrypted data blocks of same size. Each encrypted block then becomes both the key and data from the perspective of the encryption scheme, and the same block can be reused multiple times as one side of the operation for any given number of decrypted data. In order to decrypt a given file you need to first download the map that identify which blocks represent both sides of the one-time pad encryption, then the blocks which combined are twice the size of the decrypted data, and then do the operation. Freenet theorized that since any block could be the key/data for any other block you could never be certain of what information you have stored by looking at a single block. The block is just information in potentia.

Do you have any reason to think that what you're describing is what happened here? It seems unlikely to me, as it would mean that the guy could have given out a decryption key that would exonerate him.

This case has very little to do with the gliding scale between certainty and potentia. The legal system usually do not care about technicalities of technology but rather the interpretation of legal arguments. In here the Foregone Conclusion Doctrine is not about the existence of the data. The idea is that the government must already know a certain amount, and the dispute is over how much they know. In the case of the journal, some courts have find that the government need to know about the journal and that they contain authentic evidence in order to argue a forgone conclusion, while other courts think it is enough that the government know about the wall safe. Courts that demand that the government know about the content usually reject the case and the opposite for the later.

It is also important to understand that its not the journal itself that get subpoena. In the later case it is the wall case, with the government arguing that all locked wall cases must contain an unlocked wall case. The conclusion of the existence of an unlocked wall case is thus a forgone conclusion, with the content within being irrelevant to the argument.

The court in this case looked at this and said "The Commonwealth is seeking the password, not as an end, but as a pathway to the files being withheld". This basically mean that they don't accept the argument that the government can request the password based on the simple fact that an encrypted disk exist. Thus the focus is changed away from the container and onto the information within, and here the court do not think the government has enough information to prove a forgone conclusion.

I'm a bit confused about what you're saying here. We've already established that a court can't force you to provide the password to open a wall case. Why does it matter whether they know about the container or the contents?

There is nothing that is similar. The journal is a physical thing you can lay your hands on and the password exists only in the individuals mind. The act of producing it is both inherently testimonial and testimony to ownership of the contents of the data on the machine which is distinct from ownership of the machine.

It is further impossible to distinguish between won't and can't unlock.

Even if believed that you can subpoena the content of your skull you arrive at a situation where every criminal "can't remember"

Giving out the code to a wall safe demonstrates my ownership of the safe contents in exactly the same way that giving out the password to a computer demonstrates my ownership of the contents of the computer.

It seems so. It seems unlikely that such an order would be successful so they would drill the safe.

The point of bringing up wall safes is that it courts have already ruled that it's unconstitutional to require someone to give up a wall safe combination.

Isn't there a right to not testimony against oneself?

This was the point of the article.

No, the point was that there was a ruling on it from a highly divided court that only applies to Pennsylvania.

The article didn't really argue something like that. It only reported on a court case and really didn't say if they agree with the decision or not.

In my view, it’s analogous to a journal that will only exist once you have written (some of) it down in front of them. The encrypted content can only exist in decrypted form with the information in your head.

This is how wall safes are supposed to work too, which is why you can't be compelled to reveal the combination.