To me, the big question is what a trustworthy political solution would look like.
I see this desire raised a lot, in contexts from HN to Valley-mocking pieces on how encryption is no substitute for advocacy. I completely understand the instinct, but every incarnation of it seems to struggle with the same question. Namely: how do you know when you've won?
Restrictions against collecting data on US citizens didn't produce the expected results. Testimony to Congress didn't accurately depict what's collected, even in secret. In the early days, the existence of these agencies was classified to help go around restrictions on existing agencies. Years ago, back in the Puzzle Palace days, the DoJ cited systematic criminality but concluded that they were unable to prosecute it.
So... what does winning look like? What regulation, what testimony, what promise could possibly convince people that a solution had been reached, even for the moment?
You never win. To use a controversial example: Who thinks abortion rights people "won" with Roe v Wade? Their opponents have been relentlessly chipping away at that "victory" ever since. When you make something a political issue, you are guaranteeing that it cannot be won with any kind of finality.
I agree, but I'm talking about a scale even shorter than that.
Roe v Wade was a clear and unambiguous advance for abortion rights, and the battle lines are now arrayed somewhere different than they were before Roe. The fight isn't over, but it's fairly clear who holds what.
I'm talking about even knowing when you've made progress. If a federal directive came through tomorrow expansively forbidding the NSA from collecting data on US citizens, privacy advocates wouldn't even hope that bulk surveillance of citizens would stop. They know better, because it basically happened, and the definitions of words got rearranged until the program could continue unabated.
Political issues aren't settled until they fade into consensus belief, but it's usually possible to make progress and then defend it. On surveillance and privacy, there's no law or court decision or whistleblower or even prosecution that can guarantee things aren't continuing exactly the way you didn't want them to.
Exactly. This is why the fight to maintain gun rights is a never ending battle as well. Arming yourself with a gun is the best defense against a violent attacker. Legally enshrining that right is important. But even if we didn't have that right, we could still defend ourselves clandestinely via illegal means and home made weapons.
Similarly when it comes to security, privacy, and anonymity the best defense is to arm yourself with mathematical security.And to enshrine our right to those defenses in law. A subpoena only works if there is information that can be handed over in the first place. If strong and private encryption is made illegal then the best defense is still to use that technology clandestinely.
I feel safer when every private citizen I interact with uses strong encryption. I do not feel safer when every private citizen I interact with carries a gun.
I genuinely appreciate your response but it is not an argument.
fallacy [1]
>I feel x
isn't an argument. for example: I feel safer with a gun.
fallacy [2]
> ... when every private citizen I interact with carries a gun.
Having the right to carry a gun or the right to encryption does not imply everyone will/must carry one or use it at all times.
With encryption criminals around you can plan attacks, steal your identity, and trade child pornography without fear of the prying eyes of law enforcement ever being able to discover the evidence. That would probably make a large number of other people 'feel' unsafe as well. feeling a certain way isn't an argument.
Of course emotions are an argument. We're not Vulcans. Pretending that emotional impact is an irrelevant factor is a great way to win an argument without ever making anyone care what you said.
But there are no objective conclusions in politics, and asking for such is shutting the door to any useful progress. Ideally, a good political solution is one where all involved parties "feel" that they have realized more of their demands than the others -- not one where one party gets all the spoils based on winning 51% of an artificial binary vote.
I feel (part of) the reason your society is in political gridlock is because everyone keeps looking for that mythical "objective" proof that ensures a 100% victory for their side. But that's just another unicorn.
The challenge I proposed is intended to be an objective exercise otherwise it's pointless because everyone can feel however they want.
Here are some examples of how both a gun and encryption can be used for the same end goal.
X can secure a financial transaction
X can stop a thief from obtaining my credit card information
X can stop someone from forcibly obtaining my identity
X can stop an attacker from obtaining private data stored in my home.
The only thing I've been able to think of that applies to encryption and does not apply to a gun is:
Encryption can verify that a message actually came from me by decrypting it using my public key.
This is objectively true for encryption and objectively false for a firearm. Also a firearm doesn't really help with anything on the internet except maybe a shady craigslist transaction in a dark parking lot. But I meant to imply that a realistic and suitable physical analogy can be applied.
To me, the goal isn't the only thing that matters. How you achieve that goal matters too, and "using a threat of violence" ranks pretty low on the ladder of civility. Trying to equate the arguments based on goal alone is starting your argument from a false equivalence.
nah, I'm still right where I started - arguments that ignore emotional impacts are great little learning exercises but pointless if you are trying to achieve something in the real world. Good luck out there.
There have been countless times where courts have told three-letter agencies to stop doing things and they have stoppped. The judiciary has the power to protect us, much more than we give credit for.
There's still rule of law, and the executive mostly listens to what the judiciary tells it to do. For all its flaws, some of our institutions work pretty well compared to most places. I cannot think of another country where judges are able to overtake heads of states in substantial policy outcomes.
I'd actually be interested to see examples. Most of the ones I know are of courts and Congress ordering three letter agencies to stop doing things, and being lied to and ignored.
The infamous one: in its early days, the NSA was ordered to stop surveillance of US citizens. It went before the Church Committee and testified that the relevant sites had been closed for more than a year. This was a lie, bottom to top. The sites were actively operating as those words were spoken, and they weren't closed down until whistleblower James Bamford exposed the lie. https://theintercept.com/2014/10/02/the-nsa-and-me/
There's a list a mile long of similar stories. Court decisions, executive orders, and acts of Congress have bounced off these agencies without result.
I'd like to see examples, but I agree that you're not wrong in general. The agencies do respond to court decisions sometimes. My point is that when legal compliance is a coin flip and there's no way to check for results, you can't be sure that legal decision has changed anything at all.
I think part of the problem in the US is the culture where for example police departments compete for resources, basically to make their own department bigger. One of the ideas in the Ron Paul movement was that governments needs to be smaller. Of course, in the real world it probably should not go as far as Ron Paul suggests, but....
> Their opponents have been relentlessly chipping away at that "victory" ever since.
There, the "opponents" are a subset of society that have a legitimate right to not to agree with the decision and they are acting within the public framework of our governance to overturn a decision.
Here, the "opponents" of strict privacy rights are spooks and crooks in government and international corporations. It is entirely a differnet matter.
Established inherent rights -- specifically the rights of free speech, freedom of assembly, and protection from unreasonable search and seizures -- need to be protected in context of new capabilities afforded by modern communication, surveillance, and data retention technologies.
Corporations will not pull a dissenting "Roe vs Wade" that would challenge citizen rights. Just let them try that.
Overreaching elements and sub-systems of the government can try and present cases where our (updated) rights present obstacles to their performances of their legitimate legally mandated activities. And there is ample precedence for oversight for such matters.
A technological cold war with government and industry on the technological field is not a realistic option. First of all, it is politically useless since that approach implies that the constitutional framework and our entire system is in effect broken. Second, the "mathematical" bit in the secure and private mediated communication systems is the only element where one could possibly argue for parity in terms of the contending parties' capabilities. Why pick a losing fight when there remains the constitutional field where we have the upper hand, by definition.
Enacting laws under the guise of trying to improve women's health with the effect of closing abortion clinics is only surface level "acting within the public framework of our governance". These laws are ruled unconstitutional by the Supreme Court. I claim the legislators and their supporters knew this before they enacted the laws. Unfortunately they also know that it will take the Supreme Court time to make this ruling. And in that time the state laws will act to close many abortion clinics. It doesn't seem very legitimate to me.
> When you make something a political issue, you are guaranteeing that it cannot be won with any kind of finality.
But you also set up the infrastructure to fight the good fight forever. Which is what it takes to make democracy work, and work well.
Because everything important is a political issue, whether you want it to be or not. The Superconducting Supercollider, which was as clear a piece of pure science as you could imagine, was killed by politics. End to end encryption could be too.
Honestly, a major reason we are in this mess now is that for decades Silicon Valley has avoided politics and tried to pretend that the federal government does not exist. Now that it can't be ignored anymore, the tech industry does not have any of the civic institutions needed to build broad public support for its issues.
After Roe, antiabortion strategies had to change. You can say that this was a weakness of Roe, but I think it's complex enough of a situation not to attribute it to a root cause. I prefer to think of this in terms of the Red Queen Syndrome[1]: solving problems reveals new ones.
Roe v. Wade was still a great start and major victory, relatively speaking. Change takes time.
It's a bit more complicated here, though, since so much of this activity is clandestine. We can't know what rules they may be breaking (unintentionally or otherwise).
At this point, winning looks like the people responsible for abusing their power and overstepping their constitutional authority going to jail. And for a long time.
As long as the only consequence of illegal activity that violates the constitutional rights of citizens is being told to stop, there will be continued efforts to chip away and push the envelope for what they can get away with. If it were made apparent that there are personal consequences above and beyond the scope of their jobs, perhaps some of the people in those jobs would more carefully consider the constitutionality of their actions.
You can no longer decouple strong cryptography from the global economy, that could be considered a strong political solution because it represents a loss of political control.
Essentially, there is no trustworthy political solution, because politics can always change. As long as the people say, “I've got nothing to hide”, surveillance fans and fear mongers will always find the necessary support.
I always ask, "what happens if it's suddenly illegal to be gay, drink, take selfies, or worse?" I don't think I've ever left a conversation where a person said that and they left not at minimum answering that question.
What's scary, is some people seem to want that stuff - as long as it's not them getting taken away and thrown in a cell.
Political solutions change as politics change: I think it's better to be mathematically secure than politically secure, since the one is forever and the other only sure until the next election.
A political decision to stop sabotaging technological solutions would be a good starting point. Even if changed later, all the technologies already developed would still be available.
Being provably secure is great, but this is a tall order -- there are always conditions to satisfy (solution is secure if A, B and C and governments and other attackers might invalidate those by a tap point, decree, a court action, etc.).
> A political decision to stop sabotaging technological solutions would be a good starting point.
In America, we have had those, and it hasn't helped. We have a First Amendment and a Second Amendment, and yet we have campaign-finance restrictions and gun control.
Political decisions simply don't stand. It's terribly sad.
Interesting perspective. I think the majority of the rest of the world is in awe that those two specific restrictions (such as they are today) are so inadequate at protecting anybody (from the rich and crazy people with guns, respectively).
The Bill of Rights was never intended to protect citizens from each other, the intent was very clearly to protect citizens and states against the federal government. Even with this limited scope, political pressures have overcome those two amendments (and most of the others). The parent is very right to point out that it is hard to restrain the majority, even with the constitution (and/or law) on your side.
I don't think it's sad, politics are supposed to change. Obviously you can be sad at specific changes, but the idea that political decisions in general can change is a good thing.
So we went from a time when tracking or reading your communications (mail) was unconstitutional to the present, where the government can track you, listen in on you, and record all of your (electronic) communications 'just in case' they might want to check what you've been doing. Doesn't leave me inspired with optimism.
I'm only responding to "Political decisions simply don't stand. It's terribly sad." I'm sure we can all think of many examples of good political changes. In fact, I think most people would agree that good political changes vastly outnumber bad ones. Blaming current problems on the entire nature of politics seems a little overly broad. We would not be better off if we froze all politics forever in whatever your favorite year was.
"Mathematical security" can be politically banned, is banned in many parts of the world. You only have the option to use mathematical security because other people have been doing the politics for you.
You cannot protect your privacy with just mathematics. It won't help against government tracking your cell phone location or looking into your bank account.
There are plausible solutions for both of those, or at least a clear direction to look for solutions. Unfortunately, there tends to be a critical mass that decentralized systems need to reach in terms of adoption before they become truly feasible.
Consumers aren't interested in buying a "UWB mesh hub" or some such, which wouldn't appear to do anything but drain batteries. But they might, for example, buy a car stereo or security system that uses a wireless device to deliver specific features, and which also happens to help saturate the city with a p2p mesh network.
Likewise with cryptocurrency, most people are not interested in the hassle for some intangible privacy benefit. But a lot of people might be interested in a crypto video game currency that can be easily traded, even between games. Or perhaps a currency-like mechanism to implement quotas on the mesh.
They wouldn't need to outlaw or ban all cryptography, only the particular communication systems that don't have "lawful intercept" capability. There are already laws for this on the books, although they've generally been interpreted in such a way so as not to apply to non-telephony products so far.
TBH it probably wouldn't require that much Orwellian apparatus; you just make the software slightly harder to use than it already is today, and network effects basically ensure that only people who are really interested in communications without government interception (who the government is presumably interested in) are using it. Then you can start doing endpoint attacks, deanonymization via compromised downloads, etc.
The government's -- and I don't mean just the U.S.'s, but most large governments', I think -- ideal for Internet communications is something similar to the telephone network circa 1975. They're fine with privacy between one individual and another (i.e. keeping your conversations private from your neighbors), but they aren't going to be satisfied with any technology that prevents wiretaps by state-controlled apparatus.
I am not exactly bullish on the ability of technology or technologists to resist this, over the long run. Unless there is a widespread and overwhelming realization on the part of individuals that governments shouldn't have this ability, and I don't think that consensus exists even in the liberal West if you frame the question even moderately advantageously to the government, then they will get it. There will always be pockets of noncompliance, and an ensuing cat-and-mouse game, but the steady state will likely be one that deters mainstream usage.
And if we really are seeing the end of Anglo-American geopolitical dominance in favor of countries whose political systems emphasize stability and harmony over individual rights and dissent, then it becomes very difficult to see that consensus ever manifesting itself at a meaningful global level.
> Trump said Tuesday that he would be "fine" with restoring provisions of the Patriot Act to allow for the bulk data collection, something candidates such as former Florida Gov. Jeb Bush have also called for that was banned with the passage of the USA Freedom Act, which Cruz supported.
Well I don't think I'm going to agree given the only person who made it to the GE is a guy who supports surveillance.
RSA, ATT, and Verizon all took bribes from the NSA to screw over their users. At least one worked with DEA as well. These were leaked in prominent media with exposure to millions of American consumers and business people. So, let's test your theory:
RSA Net Income (2011-2015): 426M 320M -306M -115M 79M
Verizon Net same period: 2.4B 875M 11.5B 9.63B 17.88B
ATT Net same period: 3.94B 7.26B 18.25B 6.22B 13.35B
RSA took quite a hit but it could be market as well. I don't know what it's status was pre-Snowden but much of hit comes during year of the leaks. Revenue dropped a billion or two with profits turning to losses but rebounding into $75 million in 2015. Verizon and ATT are doing great. Other companies that are managed profitably that cooperate tightly with Washington are Microsoft, IBM, Google, and Oracle. Their net incomes are in the billions.
So, I think the market data indicates you're wrong even in the worst scenario for working with the surveillance state. Also, the more lock-in the business has, the better it does despite any evil choice it makes. Rule of thumb.
It already is for exports unless you get license. They probably approve it but they left high-assurance security + a bunch of other stuff classified as munitions. The "victory" of the Crypto Wars was for mass market stuff that's basically insecure.
Note: I could be really misreading the material due to not being a lawyer or pouring through regs all the time. I think it says all this stuff is still 5A002 (munition) outside the exemptions they compromised on.
Ex post facto laws are unconstitutional, and something like this (where millions would instantly be in violation) would absolutely, 100% end up in front of the Supreme Court.
Some examples of when a law can be retroactively applied:
When the Securities Exchange Commission decides that something is a security, it retroactively applies the civil and criminal compliance back to 1934 because it was always a security. I mean, you can argue it in front of a judge if you want, but thats how they established jurisdiction.
Same goes for discretionary tax law at the IRS
or any regulatory agency
I agree its a problem, but if you live your life under your version of reality it is easy to get railroaded in the dragnet
> When the Securities Exchange Commission decides that something is a security, it retroactively applies the civil and criminal compliance back to 1934 because it was always a security.
That's not a retroactive application of the law. If they are correct in their interpretation of the law, it was already the law. If they are incorrect, the courts will not allow it (whether the enforcement concerns acts before or after the determination by the SEC.)
The issue is that they, and other administrative organs, often change their interpretation of what the law "has always meant". Particularly irksome when they issue private letters with differing interpretations and then override all of them with subsequent administrative rulings.
> The issue is that they, and other administrative organs, often change their interpretation of what the law "has always meant".
Yes, and if that conflicts with what the courts believe the law has always meant, those decisions won't survive contact with the legal system. An ex post facto law is a law creating (or enhancing) criminal penalties for acts that exist before the law is passed. Changing administration interpretations are like changing prosecutorial priorities (and the former comes with a lot more notice and specificity than the latter) -- they only have effect so long as they are within the bounds of what the courts will accept was covered by the law when it was passed.
The courts will accept a hell of a lot, due to Chevron deference. Statutes will use a term (eg, "readily convertible" or "replica"), and the administrative agency will decide this term means different things depending on the day of the week and which party is in power. All it has to be is "plausible", not consistent, and the courts will defer to their interpretation.
Just a note, there is a possibility that the person you replied to is comfortable with circular logic about why the behavior is not controversial under the supposition that "the law is the law." This may be a semantical discussion about why it is not "retroactive" in a legally damning sense, despite the similarities of the distinct ability to civilly and criminally sanction somebody for something they did in the past. Long before representatives of the government decided that person's prior actions would fall under their jurisdiction.
I'm not sure what you mean, all of those agencies are formed under the constitution and the systems that support them are also abiding by the constitution
The Constitution states, 'no Bill of Attainder or ex post facto Law shall be passed'; to the extent that those executive agencies' enabling legislation permits ex post facto regulations, that legislation is unconstitutional.
They're definitely not. They've resisted due process for some time. NSA's reps even argued in Jewel case that judicial branch shouldn't be allowed involvement at all. Which is sort of the status quo for intelligence agencies and courts. Prosecutors similarly have a combo of broad powers, immunity in common abuses, and virtually no accountability. The government as it exists certainly doesn't run in the framework of the Constitution except in a partial way.
But they can instead make it illegal to use such software, which would not be an ex post facto law (it would only apply to uses of said software after the law was enacted).
Yes. However, that doesn't change the fact casual users that are largely harmless ended up losing years of their lives and had their ability to earn a good living to support themselves casually destroyed in the process.
Think democracy. We have to fight for democracy over and over, and we have a technical solution in the form of an election process that's designed to make tampering hard and in the form of institutions controlling each other for a good reason. There is no political solution to the risk of putting all your trust in a single person, aka a dictatorship, there is only a technical solution, and that is democracy: A system of government that avoids the single point of failure at great cost.
Such a thing isn't coming. The population at large doesn't care, so no major party candidate will ever fall on this line. We have to fight using technology until it becomes a politically relevant issue (which may never happen).
Maybe the pirates win the upcoming Icelandic election. They give asylum to Snowden and decide to become kind of like the Estonia of online privacy. Maybe they invest public funds in accelerators and scholarships etc. With a political climate like that, Icelandic businesses could make stronger claims about protecting data, making that a point of global competition. And then maybe the US politics could slowly start to change.
You want the government to give up the right to access communications that it has the ability to access? You're talking about a fundamental weakening of government greater than has ever been attempted. Governments have always had the power to access your mail and papers and such, the only changes over time is the legal hurdles they must use to exercise that power.
This may seem like a small nitpick to some, but I think it's extremely important that people remember that, at least in the US, rights are reserved for The People; the government, by definition, does not have rights, only authority (explicit and implicit).
It's not even a nitpick as much as a distraction from what's being talked about. In the sense that I used the word "right", it can be exchanged for the word "power" and have the exact same meaning. In fact, I make that exchange in my comment. What exactly is your point?
My point is that terms like 'right', 'power', and 'authority' are not interchangeable, they mean different things. There are other tangential points, but this entire thread is essentially about people objecting to government exercising power without authority in a way that violates rights. I hope that illustrates both the differences between these terms and why it's important to use the correct language in this discussion.
The problem is, I don't think you can say that it's a form of a giving up, or a fundemental weakening of power.
We are creating absurd amounts of information compared to before. Just because US Gov could access the measly amount of info that was generated before doesn't mean that they should be able to access the crazy amounts created now. It is from a very narrow perspective that anyone can call this a "fundemental weakening of government". Compared to before the internet, they're still drowning in insane amounts of data.
We can also add that if they can access some things, they will manipulate their way into accessing more things. Which means that reducing privacy and security is just optimization for them. And that will have costs beyond the US Government's own doing.
Sure, the current law climate seems to be that they can access it. But that climate was created with pushes from LE agencies and ignorant politicians. You may argue that that has always been the case, but clearly there's increasing demand for this to be decided democratically. So US Gov "giving up" this "right" might be the thing that democracy wants.
I'm also kind of tired of having to fight my own government every step of the way. My conclusion is different though: I'm no longer interested in fighting for political solution that will be overturned the next time we turn our backs, meaning constant fighting and more time where shitty laws apply than not. Hence, I prefer a technical solution.
