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Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

cyber.law.harvard.edu

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Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#71

Post by rayiner »

JoshTriplett wrote: post #40
rayiner wrote: post #35

Earlier quoted context omitted.

It's mostly not about banning encryption though. The debate mostly centers on regulating the products and services companies can provide to facilitate such communications. If there was a precursor to companies promising to make it easy for regular joe criminal to encrypt his postal mail, it's conceivable that the government would have fracked down on those companies. > It's one with only one right answer, but it's a…

> It's mostly not about banning encryption though. The debate mostly centers on regulating the products and services companies can provide to facilitate such communications. Banning effective encryption, or banning commercial encryption, is still effectively banning encryption, or forcing it underground and casting suspicion on it. > It's not the "government" versus "the people." It's a small group of people who stro…

The former NSA head opposes encryption backdoors: http://www.networkworld.com/article/2990294/security/former-.... So has the current NSA director: http://www.digitaltrends.com/computing/nsa-director-actually.... The White House Office of Science and Technology also opposed the FBI's proposal, which led to the White House tabling the idea: http://www.nytimes.com/2015/10/11/us/politics/obama-wont-see....

Many people in the tech community don't want to get behind those in government who oppose back doors because they are not absolutist in their rhetoric about privacy. They want to assert there there is not even a debate to be had between security and privacy and that privacy should always win. But when the vast majority of the actual voting public is concerned just as much about safety as about privacy, if not more, that's not a tenable position for elected and appointed officials to take.

Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#72

Post by AnthonyMouse »

rayiner wrote: post #68
AnthonyMouse wrote: post #45

Earlier quoted context omitted.

A brick or electronic circuit is speech when being used as a medium of expression. Code is speech all the time because it can't be anything else. It's pure information. You can't email someone a brick. It happens we have machines that will turn that information into action, but the code isn't the machine or the action. It's just a type of speech that machines can understand too. People are always wanting to regulate…

Code qua written expression is speech. The government can't ban, for example, the publication of encryption code. But that doesn't mean the government loses the ability to regulate the operation of a product just because the operation is implemented using code rather than electronic circuits. As to your printing press hypothetical, I don't think it applies. Say the back door is something like "must keep the decryptio…

> But that doesn't mean the government loses the ability to regulate the operation of a product just because the operation is implemented using code rather than electronic circuits.

Maybe it helps to better define what you mean as the product whose operation is to be regulated. If it's the hardware, it's a general purpose computer that can run any software. We quickly go to a bad place if you can't buy such a thing, e.g. side-loading on Android is prohibited, Raspberry Pi and RISC-V are prohibited, every device must prevent you from compiling a custom program and running it, etc.

But if it's the software then you're banning the publication of encryption code.

Obviously the confusion stems from Apple being the go-to example and Apple not only providing both the hardware and the software but also actually enforcing the kind of restrictions on what software the user can run that would be unreasonable as a requirement imposed by the government on the entire market. Apple could [try to] prevent you from using encryption software on an iPhone, but it makes little sense to require only them to do that if anyone can still run it on an Android phone or PC. But the alternative is that nobody can buy anything capable of running Debian or OpenBSD (or even Windows).

Moreover, the operation of the product is the thing carried out by the owner, not the manufacturer. Apple makes a nice machine and a big detailed list of things you can do with it but the user is the one choosing which buttons to press.

> As to your printing press hypothetical, I don't think it applies. Say the back door is something like "must keep the decryption key around in case a warrant comes in." That doesn't entail any modification to the "speech" coming out of the device, does it? So how does it restrict speech?

So there are two questions here: One is, can I have the code that doesn't keep the encryption key? If not then it restricts the speech you can receive and that of other people who want to give you that code (perhaps so you can use it to communicate more sensitive information with them).

Then there is the key itself. Keeping the key (or sending it to Apple or Uncle Sam) is compelling speech. The key is also information and the key + ciphertext is equivalent to the plaintext. It's equivalent to a requirement that you keep the plaintext of all your communications.

It would effectively be compelled written testimony before the fact. Either you keep everything written down or go to jail for not having it.

Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#73

Post by venomsnake »

mmaunder wrote: post #8

If we could only make them understand that forcing the good guys to not encrypt doesn't take encryption away from the bad guys. Legislators don't understand that encryption doesn't have to be made by Apple for the bad guys to have encryption. A shared key and XOR gives you unbreakable encryption. A high school comp sci. kid could implement that.

yep. Crete 3tb of one time pads, exchange hard disks and enjoy.

Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#74

Post by AnthonyMouse »

allengeorge wrote: post #66
AnthonyMouse wrote: post #39

Earlier quoted context omitted.

> The debate mostly centers on regulating the products and services companies can provide to facilitate such communications. You're calling them products but the relevant thing they want to regulate is still more speech. If you want to communicate with your friends in code then you first have to communicate the code itself. In this context the code is code , but code is speech.

I fail to understand this point. Are you saying that because you have to transfer the tool (encryption software) over a medium, the tool is now speech? I am pretty...unsympathetic...to this interpretation.

> Are you saying that because you have to transfer the tool (encryption software) over a medium, the tool is now speech?

Not because you have to but because you can. It proves the "tool" is pure information. Speech.

Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#75

Post by JoshTriplett »

rayiner wrote: post #71
JoshTriplett wrote: post #40

Earlier quoted context omitted.

> It's mostly not about banning encryption though. The debate mostly centers on regulating the products and services companies can provide to facilitate such communications. Banning effective encryption, or banning commercial encryption, is still effectively banning encryption, or forcing it underground and casting suspicion on it. > It's not the "government" versus "the people." It's a small group of people who stro…

The former NSA head opposes encryption backdoors: http://www.networkworld.com/article/2990294/security/former-... . So has the current NSA director: http://www.digitaltrends.com/computing/nsa-director-actually... . The White House Office of Science and Technology also opposed the FBI's proposal, which led to the White House tabling the idea: http://www.nytimes.com/2015/10/11/us/politics/obama-wont-see... . Many peopl…

Framing the issue as security/safety versus privacy would accept the rhetoric that keeping encryption legal and non-broken would reduce security/safety. (Which aligns with the similar rhetoric about pervasive surveillance.)

The comments by the NSA director didn't seem to have any significant effect on the general government message. As for the White House position (which I had not seen the announcement of, so thank you for the link), they said they won't seek legislation, but they hardly need to at this point; those in Congress seem more than happy to keep proposing such legislation, and I've seen no suggestions that the White House would veto it if passed.

Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#76

Post by JoshTriplett »

AnthonyMouse wrote: post #72
rayiner wrote: post #68

Earlier quoted context omitted.

Code qua written expression is speech. The government can't ban, for example, the publication of encryption code. But that doesn't mean the government loses the ability to regulate the operation of a product just because the operation is implemented using code rather than electronic circuits. As to your printing press hypothetical, I don't think it applies. Say the back door is something like "must keep the decryptio…

> But that doesn't mean the government loses the ability to regulate the operation of a product just because the operation is implemented using code rather than electronic circuits. Maybe it helps to better define what you mean as the product whose operation is to be regulated. If it's the hardware, it's a general purpose computer that can run any software. We quickly go to a bad place if you can't buy such a thing,…

> It's equivalent to a requirement that you keep the plaintext of all your communications.

> It would effectively be compelled written testimony before the fact. Either you keep everything written down or go to jail for not having it.

While I agree with you, that particular argument won't necessarily succeed, considering https://en.wikipedia.org/wiki/Sarbanes%E2%80%93Oxley_Act and similar laws regarding reporting and information retention policies. You don't want the government equating policies to protect user communication as equivalent to destruction of evidence.

Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#77

Post by Zigurd »

tptacek wrote: post #69
Zigurd wrote: post #33

Earlier quoted context omitted.

Warrants have never enabled truly limitless powers of search. Aerial search, blood tests, etc are new inventions, and nothing says that technology always favors the searcher. "Unprecedented" just means "get used to it."

Interesting. What limitations on search warrants are you thinking of when you say that? What are some examples of things investigators wanted to search, or perhaps could search pursuant to a warrant, that were later found to be so beyond the pale that no warrant could authorize them?

Interesting. Why do you think the question is what is beyond the pale. Interesting. Or maybe "condescending" is the word. Math, physics, and realty have always limited search. Try executing a search warrant on a satellite. We don't require satellites to come down out of orbit for a search warrant. Similarly, turning math into contraband would be equally stupid.

Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#79

Post by tptacek »

Zigurd wrote: post #77
tptacek wrote: post #69

Earlier quoted context omitted.

Interesting. What limitations on search warrants are you thinking of when you say that? What are some examples of things investigators wanted to search, or perhaps could search pursuant to a warrant, that were later found to be so beyond the pale that no warrant could authorize them?

Interesting. Why do you think the question is what is beyond the pale. Interesting. Or maybe "condescending" is the word. Math, physics, and realty have always limited search. Try executing a search warrant on a satellite. We don't require satellites to come down out of orbit for a search warrant. Similarly, turning math into contraband would be equally stupid.

Unlike this comment, mine was written in good faith. I thought you might have had an example of a set of circumstances in which a judicial search warrant was deemed, perhaps by some higher court, to have been unconstitutional owing to what it tried to search.

Re: Don't Panic: Seeking Points of Agreement on the “Going Dark” Debate

#80

Post by Zigurd »

tptacek wrote: post #79
Zigurd wrote: post #77

Earlier quoted context omitted.

Interesting. Why do you think the question is what is beyond the pale. Interesting. Or maybe "condescending" is the word. Math, physics, and realty have always limited search. Try executing a search warrant on a satellite. We don't require satellites to come down out of orbit for a search warrant. Similarly, turning math into contraband would be equally stupid.

Unlike this comment, mine was written in good faith. I thought you might have had an example of a set of circumstances in which a judicial search warrant was deemed, perhaps by some higher court, to have been unconstitutional owing to what it tried to search.

That's not the issue. The issue is whether the majesty of government trumps reality. In reality, math obscures secrets perfectly. The choice is whether to make that math illegal.

This isn't a unique case. Sovereign power is potent, but it isn't unlimited in theory or practice, and it isn't unchanging. Genetic modification, cheap aviation, robots, 3d printing, cryptocurrencies, etc. challenge sovereign power and related stakeholders. For good and ill.

It is doubtful that genetic engineering can be meaningfully regulated. That's probably got consequences greater that perfect secret-keeping. Governments will have to get over it.

The reason you don't hear about that as much is that authoritarians and control freaks don't obsess on it. Or don't know that maybe they should, because you can encode a lot of information in dna and smuggle it inside a tiny insect.

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