Lucas Vogel wrote:

> Hi all,
>         After reading the heated dialog about having to shut down JLF's anonymous
> services, I was wondering if we could have a dialog about it.

Three hundred some years ago, the framers of our constitution attempted to draft a set of protocols that included everything they could
imagine as possibly impinging on individual and personal freedoms.  At that time, the notion of personal privacy was akin to gravity --
there was simply no way to violate it on any significant scale.  Electricity was not known; communications was via things spoken in
person and written to paper and delivered by sanctioned courier -- and considering that the majority of the population couldn't even
read or write, common written words were about as effective as any modern form of encryption.

Thus, there is nothing in our founding documents that address this issue.  Today, it's getting to the point where personal privacy is
the exception rather than the rule, and our elected officials are using the principles in the founding documents to justify eliminating
what little privacy we have left.  Fundamentally, there is an assumption of a citizen's right to privacy in our constitution, but none
exists in fact other than how it might be circumscribed by other provisions.

If you think about it, our physical privacy exists mostly as a by-product of 4th Amendment (?) provisions against illegal search and
seizure.  Our privacy around personal communications arises from laws protecting the specific media in question, like mail and telephone
lines.

For example, stealing mail from the USPS is a Federal crime, as is tapping a phone line and picking off analog signals.  However,
stealing mail from a "private" courier like UPS or FedEx is treated like any other case of criminal theft; and tapping into data streams
is ... well, that's how the internet works -- it was designed with a large amount of redundancy and the ability to dynamically
reconfigure itself to be able to survive something as destabling as a nuclear attack.  So, what's an extra data buffer here or there?
In a broadcast medium like a typical LAN offers, there is no such thing as "privacy".

Photography didn't exist when our constitution was framed; it could take weeks of careful work to create a visual image of somebody's
likeness, and that was done by hand.  Today, the government uses video surveillance and high-speed image comparisons to identify faces
in a crowd that might represent known fugitives or terrorists.  "Security" cameras provide 24-hour recordings of all activities around
certain areas in hopes of catching evidence of unexpected and infrequent phenomena which, more often than not, compose mere "personal
expressions" rather than criminal activities.

Photo-radar snaps images of people who allegedly run red lights or exceed the posted speed limits.  News reporters post our likeness (in
name and/or image) in the paper when we're arrested for certain crimes.  Copyright laws tend to protect the photographer at the expense
of the subject(s) being photographed, especially when the images are random and unplanned.  Our employers effectively "own" the contents
of all email, temporary buffers, and persistant stores of data originated by us on their premises, without regard to its nature or
sensitivity.

We are advised of these things, then we continue to act as if our right to privacy is somehow a given.  Fundamentally, we have no "right
to privacy" in this country, other than as it might arise as a by-product of other rights.  Notice that arguments surrounding the use
and sale of encryption by individual citizens all center on "national security" rather than personal rights.  That's because we have
long-standing laws that address the former, but not the latter.

Individuals might have a right to expect certain limits against illegal search and seizure, but the government argues that they have a
more fundamental right to be able to execute a search warrant once it is issued.  Encryption gives individuals the ability to build a
veritable Ft. Knox around our "personal expressions", thus impeding the government's ability to do its job.

The founders gave us the right to bear arms and defend ourselves against unreasonable acts and behaviors of the government, but
encryption is like giving individuals their own nuclear armory.  It destabililizes the carful balance achieved in the original design.
Our privacy is secondary to all other rights and provisions of our founding documents.

Maybe it's time for a constitutional amendment?

-David Schwartz