It's strange to me that technology workers are seemingly unwilling to unionise and hold general strikes to protest these kinds of policies -- if we aren't willing to take real collective action, we aren't ever going to have our voices heard. When Australia passed an even more ludicrous anti-encryption bill a year ago, the only real response by the technology community was a handful of blog posts (after it was too late to do anything about the legislation[+]) and grand-standing on twitter.
Why are we so shocked when politicians don't listen to us? We act like petulant children -- small bursts of outrage, but with no consequences for the people in power.
[+]: Most posts were published either a day or two before it passed through the House of Reps, and some were posted during the day of the Senate discussion and passage. I did submit comments during the comment period, but we all know that had zero effect on their decisions.
Unions exist primarily to engage with employers, not government. Governments are very weary to permit any union to become politically important for historic reasons. And any wise union thinks twice before getting involved in politics.
So you'd need workers to unionize (which they have NOT done to deal with their employers). AND for that union to pick the federal government as it's first opponent (and not it's members' employers!?). AND to get that all done before this bill becomes law (and in a time of epidemic). AND then for them to win an uphill battle with the most powerful political entity on earth despite the fact that ~80% of voters don't know what you're campaigning about and if they did wouldn't care.
I think the real question here is why tech companies (or rather their CEOs, founders etc) are not making a fuss. I was disappointed by the revelations from Snowden about how Google, FB, Apple, ISPs and everyone else turned over everything without asking any questions before it was even legal after sept. 11th. But I gave them the benefit of the doubt: they were afraid, they wanted to be patriotic, it's hard to say no when someone asks nicely etc. Then they were all "outraged" by the revelations. If they were really outraged, they'd be buying senators, hiring PR firms and making public statements decrying this.
The cynical answer to that is that these companies have made a calculated decision not to pick a fight most users don't (yet) care about.
I'd also be careful calling us petulant. Politicians ignore us because 90% of people are not informed and choose not to think about history when these issues come up. But the audience here are mostly members of the other 10%. Since we're overwhelmingly outnumbers, out voted and ignored, what can we do but be outraged, share some articles about self-service-encryption and then move on?
Sorry, I've been quite confrontational in this comment. I also think there will be a lot more "outrage" than action on this. But when the possible action is very limited... Unionization would likely be positive too, I just think it would be a small part of a large and complex solution.
> Unions exist primarily to engage with employers, not government.
Labor parties in countries like the UK and Australia specifically exist to act as union-supported (and funded) parties. Unions do exist to help deal with members' employers, but they also exist to allow for collective political action.
An obvious example worldwide is teachers' unions (though you could argue because their employer is the state government, the union is fighting against their employer). Another example would be the strikes in the UK during Thatcher's time in office. Not to mention that basically all workers' rights legislation in most countries came out of battles between unions and governments, hence why they are so "weary" to "permit" unions to take political action -- because collective action works.
> So you'd need workers to unionize (which they have NOT done to deal with their employers) [...]
There's a saying about the second best time to plant a tree being today, and that applies here. This battle is most likely already lost, but actively choosing to not learn a lesson from it (unionise and mobilise for the next time this happens) is simply foolish. Ideally the technology industry would've unionised 30 years ago, but you'll never have any strength if the immediate response to someone saying "we should unionise" is "even if we unionised right now we couldn't solve $current_problem". Even if that is true, maybe having that infrastructure in place will allow you to solve tomorrow's problem?
> I think the real question here is why tech companies (or rather their CEOs, founders etc) are not making a fuss.
I hope by "fuss" you mean "shutting down operations until demands are met". Plenty of CEOs blogged about how insane the aforementioned anti-encryption legislation is (as they have in most of these cases). Looks like that doesn't work, maybe we should stop trying the same tactic?
> Politicians ignore us because 90% of people are not informed and choose not to think about history when these issues come up.
If (hypothetically) Google shut down for a week over this or any other bill, it would not be passed. They ignore us because all of our complaining is petulance -- it's not a substitute for action. That's the entire historic purpose of general strikes.
> I think the real question here is why tech companies (or rather their CEOs, founders etc) are not making a fuss.
A heavy compliance burden is a moat for incumbents. This is true in most industries - businesses only squeal about regulations if it's going to severely hurt their bottom line, if it's just an annoyance than they'll publicly claim they don't like it but also point out that it stops cowboys and amateurs (i.e. new competitors) from potentially hurting consumers.
Unions must be political because workers rights, healthcare, and pay are already political issues and business is already political. Anything which is a major fight with other powers is political, and if your issues are on the table for the nation to fight over, then it's political.
> Since we're overwhelmingly outnumbers, out voted and ignored, what can we do but be outraged, share some articles about self-service-encryption and then move on?
“Violence, naked force, has settled more issues in history than has any other factor.”
― Robert A. Heinlein, Starship Troopers
If asking nicely isn't getting you anywhere then the only alternative to achieve your goal is to use some kind of force. Economic, social or direct physical force.
I think you've hit the nail on the head, to be perfectly honest. Beyond that, the fight is a moving target. A union that forms for this issue would not be the same union as for the next issue, nor would its members uniformly be for or against the next thing in lockstep. This is how political parties splinter, expecting the same members to be mad about whatever the next issue as they were the last, however tenuously related they are.
And beyond the fight itself being so ephemeral, there's no real way to know when it's been won or not. I believe that the FCC's tight-fisted control over what's allowed on what is allowed on network television is gone, and has been for some time. The Supreme Court has shown that they actually value the first amendment pretty strongly in recent years, even when its exercise may have bad side effects, and I think that if the FCC were to try and level fines against a new broadcaster for using the word 'ass' on television or something, it could be fought and the law overturned. But existing broadcasters are relatively complicit in that. The bigger networks don't want their family friendly-mass market television to have to compete with FX, HBO, or whatever other edgier networks are out there on the same spectrum, so they don't make a fuss because the barrier to entry that those broadcasting standards impose is worth paying the occasional small fine for accidental violations.
This is undoubtedly true in some tech arenas as well, and that tech companies - despite their lofty ideals, are finding it hard to find the energy to muster full-throated rebukes of policies that they may dislike ideologically, but maybe derive some small benefit from that their upstart competitors may not.
> "Governments are very weary to permit any union to become politically important for historic reasons. And any wise union thinks twice before getting involved in politics."
An interesting notion, but not at all reflective of the way unions relate to politics in the US or Europe at least.
> Unions exist primarily to engage with employers, not government. Governments are very weary to permit any union to become politically important for historic reasons. And any wise union thinks twice before getting involved in politics.
Wise unions may not, but U.S. unions constantly do. Some governments may not permit politically-active unions, but the U.S. government does, and unions are consistently large contributors (cf. https://www.opensecrets.org/overview/toporgs.php?view=hm&cyc...).
> Unions exist primarily to engage with employers, not government.
Simply not true. Unions engaged in both historically. Workers rights is a political cause after all. Historically, unions primarily engaged the government to gain rights for the workers. Every union is/was a political organization first.
> It's strange to me that technology workers are seemingly unwilling to unionise
A better model may be a guild like actors have (SAG).
Certain 'base-level' protections are agreed to with regards to health and safety, working hours, perhaps minimum salary guidelines, healthcare, retirement plans/pensions (?), etc. However things like salary can be independently determined. Paying dues would also give access to employment lawyers and dispute resolution mechanisms.
Just as (e.g.) SAG makes sure everyone on set is safe (both Tom Cruise and Jane Smith who plays Waitress #2), but people can be paid according to their (perceived?) importance to the project.
> the only real response by the technology community was a handful of blog posts
Something that is rarely talked about anymore but true is that the original 'internet culture' from the early 90s is basically dead.
The ethos of that age was an active distrust of government and centralized authority. Further, there was a lack of trust in politics in general. That's basically gone now.
The new technologist are not just unprincipled, they are deeply political and will support whatever initiative their tribe is pursuing. Even more cynical, is how can they even be against 'spying' and 'privacy violations'? 90% of the jobs available involve doing just that.
There is no way to have a world both against the EARN IT act and yet work for FB, Google, etc - they are basically all part of the same spyware industry.
>There is no way to have a world both against the EARN IT act and yet work for FB, Google, etc - they are basically all part of the same spyware industry.
Exactly correct. I said elsewhere in this thread that I gave them (plus ISPs etc) the benefit of the doubt when it came to Snowden and their compliance with government requests because I could understand they were scared by sept 11th, they wanted to be patriotic, maybe they didn't fully understand the risk or the future they were building etc. If they let EARN pass and comply with it, we all need to opt out.
My worry is how to get enough people to do the same. Being in the 1-10% of people not using these services is difficult (I have too many friends stuck using Whatsapp and Facebook messenger), it's uneconomic (who's buying a non-apple, non-android phone?) and it just makes it too easy for government to surveil you as your own special group.
That age died when the general public started coming online. That was the time when people self hosted their own email and web servers. Nobody has time for that anymore.
Sadly, centralization is simpler. And privacy was an illusion anyway.
It's hard to keep that mindset when you end up getting a lion's share of the world's wealth and power from your technology. How can you distrust yourself and your people, then?
>There is no way to have a world both against the EARN IT act and yet work for FB, Google, etc - they are basically all part of the same spyware industry.
It seems to me that emigration is the only socially-acceptable tax revolt. I'm a South African with a BEng. degree in Electronic Engineering & Comp Sci who has been looking to emigrate.
After Australia passed the anti-encryption bill, I crossed it off the list of places I would ever start a company in. Previously it was quite high on my list, but now I feel like I would be funding a corrupt state if I paid taxes there. That is also why I intend to flee ZA.
(Any software companies in the Netherlands need someone a senior Clojure engineer, let me know!)
> It's strange to me that technology workers are seemingly unwilling to unionise and hold general strikes to protest these kinds of policies
How would that impact hobbyist software? Am I going to be run out of my job for being a "scab" if I keep developing my hobbyist projects during a strike? (Historically, "scabs" got killed, of course.) How about if it's a strike I don't agree with? Even if there's some kind of voting process on whether to strike or not, which is itself fraught and open to abuses, nothing guarantees that majority rule will be just, and nothing guarantees that anything else will result in enough legitimacy to lead to collective action. (As in: "I didn't vote to strike, so I'm not going to.")
Im with most of the tenets of the post, however its worth noting the US Government and its member states tend to generally ignore the fourth amendment unless you've got the cash to file a lawsuit.
It's incredible how far we've fallen; the border exception is particularly terrible.
I was once driving along I-10, which is an 8-lane / 80mph interstate. CBP had blockaded the entire road, and were pulling every single car and truck off to be questioned and searched.
My truck had a canopy with heavily-tinted windows that could have easily fit a few people, but I don't "look foreign", so they waved me through without even glancing at my ID or vehicle. From the people who had been pulled off, it looked like their job was to hassle people with brown skin.
I can't fathom how it isn't a violation of the Constitution to (ostensibly) search every individual driving along a major highway. What ever happened to 'probabale cause'? Is living in the US considered evidence of committing a crime in the US nowadays?
"I can't fathom how it isn't a violation of the Constitution to (ostensibly) search every individual driving along a major highway. What ever happened to 'probabale cause'?"
How can someone possibly not 'fathom' a scenario?
There's someone shooting at people/cops, car chase, prison break out, or some kind of major violent criminal moving down the highway - they may roughly what he looks like, i.e. race and gender, hence, people who fit this profile get flagged, those that don't move on.
How hard is that to imagine?
Surely it's pretty rare, but surely such situations happen.
I've literally never seen anything like that in my entire life so it's probably not like the police are likely to be acting outrageously disproportionately. But I don't know, maybe you can look it up. But it's certainly easy to see scenarios in which many might want this to be public policy given certain scenarios.
And of course there's also Wickard v. Filburn, which held that feeding cattle in one state grain raised in the same state is somehow interstate commerce, and Baker v. Carr, Gray v. Sanders & Reynolds v. Sims which combined prevent states from having a republican form of government patterned after the federal model. And there are the drug laws, which are mostly although not entirely unconstitutional. And then there are the many state and local firearms laws which violate the Second Amendment. And there's Maryland v. Craig, which guts the right to confront one's accusers. And then there are all the executive departments with no authorisation in the Constitution (e.g. the Department of Education), which IMHO violate the Ninth Amendment. Sadly, it has been a long, long time since 'this should not be done because it violates the Constitution' has been persuasive.
The Constitution's not perfect, but it's better than what we have now.
Also almost all immigration restrictions like work and residency visas are unconstitutional, as the constitution only grants the Federal government power to determine rules for naturalization.
To quote Justice William Rehnquist: “one of the greatest 'fictions' of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to 'regulate Commerce ... among the several States' (Commerce Clause), one could easily get the sense from this Court's opinions that the federal system exists only at the sufferance of Congress."
Thank you for writing to me to share your concerns about law enforcement access to encrypted communications. I appreciate the time you took to write, and I welcome the opportunity to respond.
I understand you are opposed to the “Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2020” (S. 3398), which I introduced with Senators Lindsey Graham (R-SC), Richard Blumenthal (D-CT), and Josh Hawley (R-MO) on March 5, 2020. You may be interested to know that the Senate Judiciary Committee—of which I am Ranking Member—held a hearing on the “EARN IT Act” on March 11, 2020. If you would like to watch the full hearing or read the testimonies given by the hearing witnesses, I encourage you to visit the following website: https://sen.gov/53RV.
The “EARN IT Act” would establish a National Commission on Online Sexual Exploitation Prevention to recommend best practices for companies to identify and report child sexual abuse material. Companies that implement these, or substantially similar, best practices would not be liable for any child sexual abuse materials that may still be found on their platforms. Companies that fail to meet these requirements, or fail to take other reasonable measures, would lose their liability protection.
Child abuse is one of the most heinous crimes, which is why I was deeply disturbed by recent reporting by The New York Times about the nearly 70 million online photos and videos of child sexual abuse that were reported by technology companies last year. It is a federal crime to possesses, distribute, or produce pictures of sexually explicit conduct with minors, and technology companies are required to report and remove these images on their platforms. Media reports, however, make it clear that current federal enforcement measures are insufficient and that we must do more to protect children from sexual exploitation.
Please know that I believe we must strike an appropriate balance between personal privacy and public safety. It is helpful for me to hear your perspective on this issue, and I will be mindful of your opposition to the “EARN IT Act” as the Senate continues to debate proposals to address child sexual exploitation.
Once again, thank you for writing. Should you have any other questions or comments, please call my Washington, D.C. office at (202) 224-3841 or visit my website at feinstein.senate.gov. You can also follow me online at YouTube, Facebook and Twitter, and you can sign up for my email newsletter at feinstein.senate.gov/newsletter.
"Please know that I believe we must strike an appropriate balance between personal privacy and public safety."
Why do you believe that, Dianne? Do you disagree with the spirit of the Fourth Amendment? Are invasions of personal privacy only justified by probable cause, or is that not the case? What is your standard for the "appropriate balance"?
----------
Is it even worth assuming sincerity with somebody like Feinstein? Child pornography is a heinous crime, but not nearly as heinous as using child pornography as a lever for industrial scale human rights abuses. Frauds and/or useful idiots.
What's more absurd is the assumption that they can stop child porn or sharing of anything "subjective" in the sense that it's a bunch of bytes difficult to distinguish from other bytes without manual filtering. You just can't automate distinguishing between legitimate porn and child porn. Even if you could, you'll just drive sharing of such content underground, while trampling all over the personal rights of those doing nothing wrong.
If they really want to address child pornography as a problem, they would treat it as a social ill/disease and go after the users instead of the platform. The goal should be reform that minimizes recidivism because it makes it easier to find those partaking in this content. At least with something like Facebook, they have a shot at identifying those sharing such content. Make it impossible to share on a widely used and understood service like Facebook and people will migrate to platforms that are much much harder to police.
I bet she has advocates in her office all the time with heinous pictures and stories. And I imagine over time that is more convincing than abstract arguments for privacy.
I think she's making the wrong call but I can understand the process by which she made it.
An old (90s) parable Perry Metzger came up with - point being, they'll always use "heaven forbid, the children" as the final arbiter in removing all privacy rights.
"Meanwhile, the wise man talked one evening to his friends on how all of this was making a sham of the constitution of Ruritania, of which all Ruritanians were proud. "Why", he asked, "are we obligated to sacrifice all our freedom and privacy to make the lives of the police easier? There isn't any real evidence that this makes any big dent in crime anyway! All it does is make our privacy forfeit to the state!"
However, the wise man made the mistake of saying this, as the law required, in Ruritanian, clearly and distinctly, and near a microphone. Soon, the newly formed Ruritanian Secret Police arrived and took him off, and got him to confess by torturing him. Torture was, after all, far more efficient than the old methods, and had been recently instituted to stop the recent wave of people thinking obscene thoughts about tomatoes, which Dorothy Quisling noted was one of the major problems of the new age of plenty and joy."
It seemed absurd at the time but it's becoming a reality.
Note: I had to use Qwant to find that. Just sayin'
Thank you for sharing this. That website is a gem of the past. Check out the home page:
> Some agencies of the United States Government (notably the Federal Bureau of Investigation (FBI)), want to prevent the deployment of encryption technology. They want either encryption so weak that just about anyone can break it, or they want a copy of every key used with strong encryption. This would be equivalent to a town with no locks on the front doors, or where the sheriff has a copy of every door key (just in case he has to search the house).
> The term was coined by Timothy C. May in 1988, who referred to them as "child pornographers, terrorists, drug dealers, etc." when discussing the reasons for limited civilian use of cryptography tools.
From "CypherPunk FAQ" [1]:
> 8.3.4. "How will privacy and anonymity be attacked?"
> ... like so many other "computer hacker" items, as a tool for the "Four Horsemen": drug-dealers, money-launderers, terrorists, and pedophiles.
Best practices for companies? What about best practices for the people who actually enforce the law? Why doesn't law enforcement do it's actual job instead of trying to bypass the Constitution? You know, go undercover and catch people like the good old days. I'm supposed to give up my privacy because they are lazy.
It blows me away that California keeps sending probably the worst Senator in the Democratic caucus to DC every single election. Y'all need to kick her to the curb already.
This is the perfect counterpoint to all the grandstanding about calling your representatives. I tried calling both my Senators' offices when one of the "big issues" was going around. (I don't even remember what it was now.) In both cases, I got some aide who 1) couldn't or wouldn't tell me my Senator's position on the bill, and 2) couldn't possibly care less (despite what they said) about my opinion on the matter. I mean, I'm sorry to be pessimistic about it, but on that day, I learned that the average person does NOT, in fact, have any influence in what's going on in Washington. Influencing legislation is a right reserved for campaign contributors. Until we get serious about "getting money out of politics," that will be the case.
Yeah I dont even bother with the whole "call / write your senator" stuff. Total just get these condescending auto-responses telling you why they're right and you're wrong.
> Influencing legislation is a right reserved for campaign contributors. Until we get serious about "getting money out of politics," that will be the case.
I dont even think its just that. I'd wager than whenever a case like this comes up, the bill is either popular in the congressperson home state or people are widely just ignorant about it and what it entails. These two things probably help contribute to some of the most unpopular senators nationally are constantly re-elected and have been for decades.
Fully agreed. Exactly the same response AND same attitude from our representatives. The attitude part of it was the worst- it's specifically designed to be unrewarding, to make you leave them alone .
There are technical solutions coming down the pike at our benighted lawmakers that are going to change the balance of power and force them to be more attentive and truly represent their constituents. That's all I can say for now.
Pelosi and Feinstein DO truly represent their constituents as far as I can tell, it has to be said. I don't particularly like either of them, but then I don't particularly care for the people they represent either.
Thank you for contacting my office. Your thoughts and concerns are very important to me and you will receive a more detailed response shortly. I sincerely appreciate your patience in waiting for this response, as our mail volume is often significant.
If this is a request for assistance with a federal agency or an immigration case, please contact my Department of Constituent Affairs directly by phone at (212) 688 - 6262 or email casework@gillibrand.senate.gov .
So what? If the supreme Court refuse to heard the case, like they have with the Patriot Act and pretty much every similar case since Sept 11th, nothing will stop it.
I like to see legislation as similar to computer code, where the "computer" is society & the courts.
There are a lot of parallels: the actual laws that are passed often look like diffs explained with words (insert this word here, remove this sentence, etc), every concept has to be explicitely defined, and you have to think of all the corner-cases otherwise you get unforeseen consequences, etc.
Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it.
The fact that most legislators are actually terrible coders doesn't help at all either.
I used to think about law that way. Then I became friends with a number of attorneys and a couple of judges. Talking to them made it abundantly clear that much codified law and judge-made law functions more as rough heuristics and less as "code".
I've also heard the "technical debt" you're speaking of as being described as a feature, rather than a bug.
Sure, it's an analogy, and analogies are always imperfect. It's true that the "computer" isn't a conventional computer at all, and behaves a lot differently.
As a non-lawyer with a bit of interest in understanding the law, though, I'm strongly opposed to that technical debt. While it sure does keep the lawyers employed, it makes it _very_ hard for the lay citizen to understand what we can or cannot do.
This analogy is commonly drawn by programmers. Like many analogies it's imperfect.
Law in the Common Law countries (the UK, US, Australia, Canada, NZ etc) has two main sources: case law and legislation. They are both the law. Case law derives its power from precedent, legislation from declaration. But they are both the law. Legislation read in isolation will not give you a correct understanding of the law.
More specifically:
> Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it.
Reform acts are passed all the time, often consolidating caselaw, or consolidating legislation, or both. Just as often there's a process of cleaning up the attic and finding old legislation that needs to be repealed. Where I studied law, the Law of Property Act 2000 (NT) included repeals for Acts going back as far as 1266[0].
But a legislature has limited bandwidth. Within this bandwidth there is a fat tail distribution of attention. Contentious issues frequently absorb legislative time and effort out of proportion to their size or complexity. This is not a matter of legislation-as-code, this is a matter of the economics of public choice and bargaining.
> The fact that most legislators are actually terrible coders doesn't help at all either.
Legislation is typically drafted by professional drafters working for the legislature. Some comes from "model acts" provided by lobbyists, these too drafted by professionals. Drafting legislation is as hard or harder than coding. There are no debugging tools, no test suites, everything is done live in production with potentially unlimited consequences. Those drafters work with immense care and often under absurd deadlines.
> Drafting legislation is as hard or harder than coding.
I agree, and it's mind-blowing to me that no effort is being made to improve that process and the tooling that goes around it.
I recently read "You have to remain innocent" by James Duane (of "never talk to police fame"), and it's truly chilling how nobody can even tell what is or isn't a crime anymore.
It's the EFF's job to advocate for a strong position on this kind of stuff, but it's a little hard to square those strong 4th Amendment claims with the existence of the third party doctrine.
Let's say a service builds a system with end-to-end encryption, such that the service provider itself is unable to decrypt and read any messages sent using the service.
How would the third party doctrine apply to that scenario? I haven't voluntarily given any decrypted information to the service provider. Instead, I specifically avoided voluntarily giving them that information.
So, at least in the context that the EARN IT act may threaten end-to-end encryption (or may attach significant civil liability to adopting end-to-end encryption) I'm not sure I understand how the third party doctrine applies. Can you expand on that?
The trouble is that the argument isn't that pressuring providers to eliminate end to end encryption itself violates the 4th Amendment, but that, in the new scheme required under EARN IT, that when a provider does scan your information, that will violate the 4th Amendment.
So at the time this argument applies, you have provided them readable information and the doctrine would apply.
To be fairer to EFF in the light of the morning, their argument actually does account for the third-party doctrine: it instead rests on the theory that courts would find EARN IT so coercive that the service providers should be effectively treated as an arm of the state. I take a pretty dim view of the likelihood of such an argument's success, but it's a game attempt.
The 1st Amendment case is probably stronger, especially given the tendency toward maximalism in that area by the Supreme Court lately... but I wouldn't call it very strong. Defeating this politically is a much better bet.
The third party doctrine arises from an era where much less information was held by third parties. It obviously can't be claimed that information I share with integral service providers, e.g. when sending an email to my daughter, carries no expectation of privacy. Third party doctrine is therefore highly problematic, and it is already seeing a small number of court decisions picking away at it. It inevitably has to be reworked.
I agree with you that the third party doctrine is itself a problem, particularly as more and more of daily life is recorded and conducted through such "third parties."
End to end encryption is one way of fighting back against that regime: if the third party has nothing it can use to respond to a subpoena then that's that.
Of course we see here that the government quite likes their access (and sees encryption as standing in the way even of warrant-based access) and so they're stirring to action. I suppose I'm just a pessimist about the prospects of courts stepping in here to "fix" their mistakes (or prevent the legislature from making new ones).
No, the third party doctrine allows for compelled disclosure (through warrants) of a user's data which the service acted as a carrier for. That's why law enforcement can send warrants to Google (or your ISP) to get the contents of your email account, rather than having to serve you a warrant.
The part that is often cited as being "voluntary" is that you decided to volunteer your information to a third-party (even if the service requires you to do so, and thus you actually had no meaningful choice in the matter) and thus you have "no reasonable expectation of privacy".
It's funny (to me) that people are surprised that Feinstein is so willing to trample over Constitutional protections while blithely ignoring the objections of the citizens she (in theory) represents.
For years, this has been her approach to the 2nd amendment, and to be honest, most geeks have either remained silent, or applauded her actions.
Now she's coming for the 4th amendment, and geeks are up in arms (humour intentional).
Many people believe the second amendment is wrong and it does not require protection, but they still care about the 4th. The only thing I always think about when I see this: https://en.wikipedia.org/wiki/First_they_came_...
The Second Amendment was probably a bad idea when it was written. Its proponents made a bunch of assumptions that look laughable in hindsight. Today in the hands of a Supreme Court increasingly disconnected from reality it's interpreted as an excuse to let people who clearly shouldn't have guns at all have as many guns as they can buy.
"First they came..." is about people not about ice cream flavors, or video games or constitutional amendments. Changing laws is a normal function of society. It is an anomaly (and a grave defect) that the US has become unable to even think of changing these particular laws, to the point where many of its people enshrine them as holy principles rather than recognising they are just laws of men.
It has been forever since America had judges brave enough to argue that something can't be lawful because it is evil, and so the EFF is obliged to frame things as "unconstitutional" instead. In a way that's America's legacy, the observation that slavery was evil pre-dates its founding as a country built on slavery, so it has always been necessary to its function to pretend that it's somehow important to allow evil if it's legal. In such an environment any potential judge with strong moral character could only be discouraged.
Readit News
Why are we so shocked when politicians don't listen to us? We act like petulant children -- small bursts of outrage, but with no consequences for the people in power.
[+]: Most posts were published either a day or two before it passed through the House of Reps, and some were posted during the day of the Senate discussion and passage. I did submit comments during the comment period, but we all know that had zero effect on their decisions.
So you'd need workers to unionize (which they have NOT done to deal with their employers). AND for that union to pick the federal government as it's first opponent (and not it's members' employers!?). AND to get that all done before this bill becomes law (and in a time of epidemic). AND then for them to win an uphill battle with the most powerful political entity on earth despite the fact that ~80% of voters don't know what you're campaigning about and if they did wouldn't care.
I think the real question here is why tech companies (or rather their CEOs, founders etc) are not making a fuss. I was disappointed by the revelations from Snowden about how Google, FB, Apple, ISPs and everyone else turned over everything without asking any questions before it was even legal after sept. 11th. But I gave them the benefit of the doubt: they were afraid, they wanted to be patriotic, it's hard to say no when someone asks nicely etc. Then they were all "outraged" by the revelations. If they were really outraged, they'd be buying senators, hiring PR firms and making public statements decrying this.
The cynical answer to that is that these companies have made a calculated decision not to pick a fight most users don't (yet) care about.
I'd also be careful calling us petulant. Politicians ignore us because 90% of people are not informed and choose not to think about history when these issues come up. But the audience here are mostly members of the other 10%. Since we're overwhelmingly outnumbers, out voted and ignored, what can we do but be outraged, share some articles about self-service-encryption and then move on?
Sorry, I've been quite confrontational in this comment. I also think there will be a lot more "outrage" than action on this. But when the possible action is very limited... Unionization would likely be positive too, I just think it would be a small part of a large and complex solution.
Labor parties in countries like the UK and Australia specifically exist to act as union-supported (and funded) parties. Unions do exist to help deal with members' employers, but they also exist to allow for collective political action.
An obvious example worldwide is teachers' unions (though you could argue because their employer is the state government, the union is fighting against their employer). Another example would be the strikes in the UK during Thatcher's time in office. Not to mention that basically all workers' rights legislation in most countries came out of battles between unions and governments, hence why they are so "weary" to "permit" unions to take political action -- because collective action works.
> So you'd need workers to unionize (which they have NOT done to deal with their employers) [...]
There's a saying about the second best time to plant a tree being today, and that applies here. This battle is most likely already lost, but actively choosing to not learn a lesson from it (unionise and mobilise for the next time this happens) is simply foolish. Ideally the technology industry would've unionised 30 years ago, but you'll never have any strength if the immediate response to someone saying "we should unionise" is "even if we unionised right now we couldn't solve $current_problem". Even if that is true, maybe having that infrastructure in place will allow you to solve tomorrow's problem?
> I think the real question here is why tech companies (or rather their CEOs, founders etc) are not making a fuss.
I hope by "fuss" you mean "shutting down operations until demands are met". Plenty of CEOs blogged about how insane the aforementioned anti-encryption legislation is (as they have in most of these cases). Looks like that doesn't work, maybe we should stop trying the same tactic?
> Politicians ignore us because 90% of people are not informed and choose not to think about history when these issues come up.
If (hypothetically) Google shut down for a week over this or any other bill, it would not be passed. They ignore us because all of our complaining is petulance -- it's not a substitute for action. That's the entire historic purpose of general strikes.
A heavy compliance burden is a moat for incumbents. This is true in most industries - businesses only squeal about regulations if it's going to severely hurt their bottom line, if it's just an annoyance than they'll publicly claim they don't like it but also point out that it stops cowboys and amateurs (i.e. new competitors) from potentially hurting consumers.
“Violence, naked force, has settled more issues in history than has any other factor.” ― Robert A. Heinlein, Starship Troopers
If asking nicely isn't getting you anywhere then the only alternative to achieve your goal is to use some kind of force. Economic, social or direct physical force.
And beyond the fight itself being so ephemeral, there's no real way to know when it's been won or not. I believe that the FCC's tight-fisted control over what's allowed on what is allowed on network television is gone, and has been for some time. The Supreme Court has shown that they actually value the first amendment pretty strongly in recent years, even when its exercise may have bad side effects, and I think that if the FCC were to try and level fines against a new broadcaster for using the word 'ass' on television or something, it could be fought and the law overturned. But existing broadcasters are relatively complicit in that. The bigger networks don't want their family friendly-mass market television to have to compete with FX, HBO, or whatever other edgier networks are out there on the same spectrum, so they don't make a fuss because the barrier to entry that those broadcasting standards impose is worth paying the occasional small fine for accidental violations.
This is undoubtedly true in some tech arenas as well, and that tech companies - despite their lofty ideals, are finding it hard to find the energy to muster full-throated rebukes of policies that they may dislike ideologically, but maybe derive some small benefit from that their upstart competitors may not.
An interesting notion, but not at all reflective of the way unions relate to politics in the US or Europe at least.
Wise unions may not, but U.S. unions constantly do. Some governments may not permit politically-active unions, but the U.S. government does, and unions are consistently large contributors (cf. https://www.opensecrets.org/overview/toporgs.php?view=hm&cyc...).
Simply not true. Unions engaged in both historically. Workers rights is a political cause after all. Historically, unions primarily engaged the government to gain rights for the workers. Every union is/was a political organization first.
A better model may be a guild like actors have (SAG).
Certain 'base-level' protections are agreed to with regards to health and safety, working hours, perhaps minimum salary guidelines, healthcare, retirement plans/pensions (?), etc. However things like salary can be independently determined. Paying dues would also give access to employment lawyers and dispute resolution mechanisms.
Just as (e.g.) SAG makes sure everyone on set is safe (both Tom Cruise and Jane Smith who plays Waitress #2), but people can be paid according to their (perceived?) importance to the project.
I see a lot of ‘Made in NY’ startups, even open source stuff use that brand, it feels like developer community is ripe for something like this.
Something that is rarely talked about anymore but true is that the original 'internet culture' from the early 90s is basically dead.
The ethos of that age was an active distrust of government and centralized authority. Further, there was a lack of trust in politics in general. That's basically gone now.
The new technologist are not just unprincipled, they are deeply political and will support whatever initiative their tribe is pursuing. Even more cynical, is how can they even be against 'spying' and 'privacy violations'? 90% of the jobs available involve doing just that.
There is no way to have a world both against the EARN IT act and yet work for FB, Google, etc - they are basically all part of the same spyware industry.
Exactly correct. I said elsewhere in this thread that I gave them (plus ISPs etc) the benefit of the doubt when it came to Snowden and their compliance with government requests because I could understand they were scared by sept 11th, they wanted to be patriotic, maybe they didn't fully understand the risk or the future they were building etc. If they let EARN pass and comply with it, we all need to opt out.
My worry is how to get enough people to do the same. Being in the 1-10% of people not using these services is difficult (I have too many friends stuck using Whatsapp and Facebook messenger), it's uneconomic (who's buying a non-apple, non-android phone?) and it just makes it too easy for government to surveil you as your own special group.
Sadly, centralization is simpler. And privacy was an illusion anyway.
Deleted Comment
Very well put
After Australia passed the anti-encryption bill, I crossed it off the list of places I would ever start a company in. Previously it was quite high on my list, but now I feel like I would be funding a corrupt state if I paid taxes there. That is also why I intend to flee ZA.
(Any software companies in the Netherlands need someone a senior Clojure engineer, let me know!)
How would that impact hobbyist software? Am I going to be run out of my job for being a "scab" if I keep developing my hobbyist projects during a strike? (Historically, "scabs" got killed, of course.) How about if it's a strike I don't agree with? Even if there's some kind of voting process on whether to strike or not, which is itself fraught and open to abuses, nothing guarantees that majority rule will be just, and nothing guarantees that anything else will result in enough legitimacy to lead to collective action. (As in: "I didn't vote to strike, so I'm not going to.")
Dead Comment
Dead Comment
https://arstechnica.com/tech-policy/2020/02/removing-a-gps-t...
https://www.washingtonexaminer.com/michael-bloombergs-stop-a...
https://en.wikipedia.org/wiki/Border_search_exception
https://reason.com/2019/09/10/the-supreme-courts-next-big-fo...
and lets not forget, the star of the 21st century...
https://www.aclu.org/blog/national-security/privacy-and-surv...
I was once driving along I-10, which is an 8-lane / 80mph interstate. CBP had blockaded the entire road, and were pulling every single car and truck off to be questioned and searched.
My truck had a canopy with heavily-tinted windows that could have easily fit a few people, but I don't "look foreign", so they waved me through without even glancing at my ID or vehicle. From the people who had been pulled off, it looked like their job was to hassle people with brown skin.
I can't fathom how it isn't a violation of the Constitution to (ostensibly) search every individual driving along a major highway. What ever happened to 'probabale cause'? Is living in the US considered evidence of committing a crime in the US nowadays?
How can someone possibly not 'fathom' a scenario?
There's someone shooting at people/cops, car chase, prison break out, or some kind of major violent criminal moving down the highway - they may roughly what he looks like, i.e. race and gender, hence, people who fit this profile get flagged, those that don't move on.
How hard is that to imagine?
Surely it's pretty rare, but surely such situations happen.
I've literally never seen anything like that in my entire life so it's probably not like the police are likely to be acting outrageously disproportionately. But I don't know, maybe you can look it up. But it's certainly easy to see scenarios in which many might want this to be public policy given certain scenarios.
The Constitution's not perfect, but it's better than what we have now.
To quote Justice William Rehnquist: “one of the greatest 'fictions' of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to 'regulate Commerce ... among the several States' (Commerce Clause), one could easily get the sense from this Court's opinions that the federal system exists only at the sufferance of Congress."
Thank you for writing to me to share your concerns about law enforcement access to encrypted communications. I appreciate the time you took to write, and I welcome the opportunity to respond.
I understand you are opposed to the “Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2020” (S. 3398), which I introduced with Senators Lindsey Graham (R-SC), Richard Blumenthal (D-CT), and Josh Hawley (R-MO) on March 5, 2020. You may be interested to know that the Senate Judiciary Committee—of which I am Ranking Member—held a hearing on the “EARN IT Act” on March 11, 2020. If you would like to watch the full hearing or read the testimonies given by the hearing witnesses, I encourage you to visit the following website: https://sen.gov/53RV.
The “EARN IT Act” would establish a National Commission on Online Sexual Exploitation Prevention to recommend best practices for companies to identify and report child sexual abuse material. Companies that implement these, or substantially similar, best practices would not be liable for any child sexual abuse materials that may still be found on their platforms. Companies that fail to meet these requirements, or fail to take other reasonable measures, would lose their liability protection.
Child abuse is one of the most heinous crimes, which is why I was deeply disturbed by recent reporting by The New York Times about the nearly 70 million online photos and videos of child sexual abuse that were reported by technology companies last year. It is a federal crime to possesses, distribute, or produce pictures of sexually explicit conduct with minors, and technology companies are required to report and remove these images on their platforms. Media reports, however, make it clear that current federal enforcement measures are insufficient and that we must do more to protect children from sexual exploitation.
Please know that I believe we must strike an appropriate balance between personal privacy and public safety. It is helpful for me to hear your perspective on this issue, and I will be mindful of your opposition to the “EARN IT Act” as the Senate continues to debate proposals to address child sexual exploitation.
Once again, thank you for writing. Should you have any other questions or comments, please call my Washington, D.C. office at (202) 224-3841 or visit my website at feinstein.senate.gov. You can also follow me online at YouTube, Facebook and Twitter, and you can sign up for my email newsletter at feinstein.senate.gov/newsletter.
Best regards.
Sincerely yours,
Why do you believe that, Dianne? Do you disagree with the spirit of the Fourth Amendment? Are invasions of personal privacy only justified by probable cause, or is that not the case? What is your standard for the "appropriate balance"?
----------
Is it even worth assuming sincerity with somebody like Feinstein? Child pornography is a heinous crime, but not nearly as heinous as using child pornography as a lever for industrial scale human rights abuses. Frauds and/or useful idiots.
If they really want to address child pornography as a problem, they would treat it as a social ill/disease and go after the users instead of the platform. The goal should be reform that minimizes recidivism because it makes it easier to find those partaking in this content. At least with something like Facebook, they have a shot at identifying those sharing such content. Make it impossible to share on a widely used and understood service like Facebook and people will migrate to platforms that are much much harder to police.
I think she's making the wrong call but I can understand the process by which she made it.
http://www.clock.org/~fair/opinion/parable.html
"Meanwhile, the wise man talked one evening to his friends on how all of this was making a sham of the constitution of Ruritania, of which all Ruritanians were proud. "Why", he asked, "are we obligated to sacrifice all our freedom and privacy to make the lives of the police easier? There isn't any real evidence that this makes any big dent in crime anyway! All it does is make our privacy forfeit to the state!"
However, the wise man made the mistake of saying this, as the law required, in Ruritanian, clearly and distinctly, and near a microphone. Soon, the newly formed Ruritanian Secret Police arrived and took him off, and got him to confess by torturing him. Torture was, after all, far more efficient than the old methods, and had been recently instituted to stop the recent wave of people thinking obscene thoughts about tomatoes, which Dorothy Quisling noted was one of the major problems of the new age of plenty and joy."
It seemed absurd at the time but it's becoming a reality.
Note: I had to use Qwant to find that. Just sayin'
> Some agencies of the United States Government (notably the Federal Bureau of Investigation (FBI)), want to prevent the deployment of encryption technology. They want either encryption so weak that just about anyone can break it, or they want a copy of every key used with strong encryption. This would be equivalent to a town with no locks on the front doors, or where the sheriff has a copy of every door key (just in case he has to search the house).
http://www.clock.org
Reading this, I could’ve sworn that it was referring to the EARN IT act. But the website hasn’t been updated in years.
> The term was coined by Timothy C. May in 1988, who referred to them as "child pornographers, terrorists, drug dealers, etc." when discussing the reasons for limited civilian use of cryptography tools.
From "CypherPunk FAQ" [1]:
> 8.3.4. "How will privacy and anonymity be attacked?"
> ... like so many other "computer hacker" items, as a tool for the "Four Horsemen": drug-dealers, money-launderers, terrorists, and pedophiles.
---
[0]: https://en.wikipedia.org/wiki/Four_Horsemen_of_the_Infocalyp...
[1]: http://groups.csail.mit.edu/mac/classes/6.805/articles/crypt...
And... there you have it; think of the children! Is there a law for political arguments for this?
Berfert's Law: Given enough time/discussion, the stated reasons for any given law will eventually fall back on "think of the children!"
Her response doesn't even include any reasoning on _why_ the law is an appropriate balance.
> Influencing legislation is a right reserved for campaign contributors. Until we get serious about "getting money out of politics," that will be the case.
I dont even think its just that. I'd wager than whenever a case like this comes up, the bill is either popular in the congressperson home state or people are widely just ignorant about it and what it entails. These two things probably help contribute to some of the most unpopular senators nationally are constantly re-elected and have been for decades.
There are technical solutions coming down the pike at our benighted lawmakers that are going to change the balance of power and force them to be more attentive and truly represent their constituents. That's all I can say for now.
Pelosi and Feinstein DO truly represent their constituents as far as I can tell, it has to be said. I don't particularly like either of them, but then I don't particularly care for the people they represent either.
If this is a request for assistance with a federal agency or an immigration case, please contact my Department of Constituent Affairs directly by phone at (212) 688 - 6262 or email casework@gillibrand.senate.gov .
Thank you again for contacting my office.
Sincerely,
Kirsten Gillibrand United States Senator
Deleted Comment
Deleted Comment
There are a lot of parallels: the actual laws that are passed often look like diffs explained with words (insert this word here, remove this sentence, etc), every concept has to be explicitely defined, and you have to think of all the corner-cases otherwise you get unforeseen consequences, etc.
Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it.
The fact that most legislators are actually terrible coders doesn't help at all either.
I've also heard the "technical debt" you're speaking of as being described as a feature, rather than a bug.
As a non-lawyer with a bit of interest in understanding the law, though, I'm strongly opposed to that technical debt. While it sure does keep the lawyers employed, it makes it _very_ hard for the lay citizen to understand what we can or cannot do.
Law in the Common Law countries (the UK, US, Australia, Canada, NZ etc) has two main sources: case law and legislation. They are both the law. Case law derives its power from precedent, legislation from declaration. But they are both the law. Legislation read in isolation will not give you a correct understanding of the law.
More specifically:
> Unfortunately, most bodies of law have amassed a huge amount of technical debt, and nobody seems interested in solving it.
Reform acts are passed all the time, often consolidating caselaw, or consolidating legislation, or both. Just as often there's a process of cleaning up the attic and finding old legislation that needs to be repealed. Where I studied law, the Law of Property Act 2000 (NT) included repeals for Acts going back as far as 1266[0].
But a legislature has limited bandwidth. Within this bandwidth there is a fat tail distribution of attention. Contentious issues frequently absorb legislative time and effort out of proportion to their size or complexity. This is not a matter of legislation-as-code, this is a matter of the economics of public choice and bargaining.
> The fact that most legislators are actually terrible coders doesn't help at all either.
Legislation is typically drafted by professional drafters working for the legislature. Some comes from "model acts" provided by lobbyists, these too drafted by professionals. Drafting legislation is as hard or harder than coding. There are no debugging tools, no test suites, everything is done live in production with potentially unlimited consequences. Those drafters work with immense care and often under absurd deadlines.
[0] http://classic.austlii.edu.au/au/legis/nt/consol_act/lopa200...
I agree, and it's mind-blowing to me that no effort is being made to improve that process and the tooling that goes around it.
I recently read "You have to remain innocent" by James Duane (of "never talk to police fame"), and it's truly chilling how nobody can even tell what is or isn't a crime anymore.
We really should improve this.
That's because law professionals make a very good living by dealing with the technical debt - a bit like the worst kinds of IT consultants.
How would the third party doctrine apply to that scenario? I haven't voluntarily given any decrypted information to the service provider. Instead, I specifically avoided voluntarily giving them that information.
So, at least in the context that the EARN IT act may threaten end-to-end encryption (or may attach significant civil liability to adopting end-to-end encryption) I'm not sure I understand how the third party doctrine applies. Can you expand on that?
So at the time this argument applies, you have provided them readable information and the doctrine would apply.
To be fairer to EFF in the light of the morning, their argument actually does account for the third-party doctrine: it instead rests on the theory that courts would find EARN IT so coercive that the service providers should be effectively treated as an arm of the state. I take a pretty dim view of the likelihood of such an argument's success, but it's a game attempt.
The 1st Amendment case is probably stronger, especially given the tendency toward maximalism in that area by the Supreme Court lately... but I wouldn't call it very strong. Defeating this politically is a much better bet.
End to end encryption is one way of fighting back against that regime: if the third party has nothing it can use to respond to a subpoena then that's that.
Of course we see here that the government quite likes their access (and sees encryption as standing in the way even of warrant-based access) and so they're stirring to action. I suppose I'm just a pessimist about the prospects of courts stepping in here to "fix" their mistakes (or prevent the legislature from making new ones).
The part that is often cited as being "voluntary" is that you decided to volunteer your information to a third-party (even if the service requires you to do so, and thus you actually had no meaningful choice in the matter) and thus you have "no reasonable expectation of privacy".
For years, this has been her approach to the 2nd amendment, and to be honest, most geeks have either remained silent, or applauded her actions.
Now she's coming for the 4th amendment, and geeks are up in arms (humour intentional).
"First they came..." is about people not about ice cream flavors, or video games or constitutional amendments. Changing laws is a normal function of society. It is an anomaly (and a grave defect) that the US has become unable to even think of changing these particular laws, to the point where many of its people enshrine them as holy principles rather than recognising they are just laws of men.
It has been forever since America had judges brave enough to argue that something can't be lawful because it is evil, and so the EFF is obliged to frame things as "unconstitutional" instead. In a way that's America's legacy, the observation that slavery was evil pre-dates its founding as a country built on slavery, so it has always been necessary to its function to pretend that it's somehow important to allow evil if it's legal. In such an environment any potential judge with strong moral character could only be discouraged.