The EU still wants to scan your private messages and photos

The story is tragically illustrative of the maxim that you can oppose terrible legislation a hundred times but they only have to pass it once.

In this case, I see no reason that we would want to draft constitutional rights such that we consider a government's actions taken in pursuit of their national security to be, per se, legal — i.e. warranted, unable to be sued over, etc.

Imagine instead, a much weaker right granted to the state: the right to maintain laws or regulations which require/force government or military employees to do things that violate people's rights and/or the law of the land. But with no limit on liability. No grant of warrant. Just the mildest possible form of preservation: technically constitutional; and not immediately de-fanged the first time the Supreme Court gets their hands on it.

So, for example, some state might introduce a new law saying that soldiers can come to your house and confiscate your laptop. And then the head of that state might actually use that law to invade your home and take your laptop.

Given that the law exists, it would be legal for the head-of-state to give this order. And it would also be legal for the soldiers to obey this order (or to put it another way, court-martialable for the soldiers to disobey this order, since it's not an illegal order.)

But the actual thing that happened as a result of this law being followed, would be illegal — criminal theft! — and you would therefore be entitled to sue the state for damages about it. And perhaps, if it was still reporting on Find My or whatever, you might even be entitled to send police to whatever NSA vault your laptop is held in, to go get it back for you. (Where, unlike the state, those police do have a warrant to bust in there to get it. The state can't sue them for damages incurred while they were retrieving the laptop!)

The courts wouldn't be able to strike down the law (the national-security provision allows the state to declare it 'not un-constitutional", remember?); but since obeying the law produces illegal outcomes, you would be able to punish the government each and every time they actually use it. In as many ways as the state caused you and others harm through their actions.

There is absolutely zero reason why the state shouldn't be expected to "make people whole" for damages it has caused them, each and every time it does something against the people's interest in the name of national security.

And the simplest way to calculate that penalty / make the claiming and distribution of those rewards practical, would be to just not remove liability for these actions taken on behalf of the state, by not granting the state the right to do them in the first place. Just put them in the position of any other criminal, and force them to go to court to defend themselves.

Change my mind!

How would this be enforced in practice? In other words, what would prevent E.U. users from using encrypted services outside of the jurisdiction of the E.U., to "illegally" encrypt their hard drives or to run their own private encrypted comms servers?

    while not pass:
        try to pass something stupid, malevolent or that hurts people and democracies