>My understanding of the legal theory is that computers are considered to increase the capabilities of the population; hence, the government's power to enforce the law must also be increased.
The obvious counterargument is that it would have to be a two way street or you would have endlessly expanding government powers. Thus, if computers increase the capability of law enforcement (e.g. to wiretap at scale or search recorded communications without individual law enforcement officials having to listen to them) then the individual's rights against government surveillance must also be increased.
Moreover, if the argument is that we need to maintain the historical balance between privacy and law enforcement interests then even the existing powers of law enforcement go too far, because the technology available to law enforcement officials when the amendments in the Bill of Rights were adopted didn't allow real-time communication between individuals to be recorded whatsoever.
And I have to imagine a lawyer would ask what case establishes this legal theory of government automatically gaining new powers as a result of technological advances, because I'm not aware of any such precedent.
> Consider a car analogy: you must display visible license plates to identify your vehicle whenever it is on the road, yet that was never required for horses, carriages, bicycles, or any previous mode of transportation.
It is easy to draw a distinction between cars and computers because the reason we require identification for cars is not that they are more powerful than bicycles etc., it is that they are more dangerous. Computers, by contrast, are for the most part not dangerous at all. No innocent bystanders are killed when someone uses the internet while intoxicated. Moreover, we can see how the distinction plays out with automobiles, because anyone can use mass transit anonymously, which is clearly much more powerful than a bicycle in rapidly getting you from here to there, but also not very dangerous.
> It is assumed that the spirit of the law must be upheld. If the police are legally allowed to wiretap a suspect as part of an investigation, then encryption must not be allowed to get in the way of that. In other words, technology must not defeat the law, even in spirit.
I'm not seeing any coherent principle in this argument. If the police are legally allowed to stand in the street and look at you through the window when you are standing in your living room, then a curtain "must not be allowed to get in the way of that"?
It seems obvious that just because the use of a technology makes the jobs of law enforcement more difficult doesn't mean that people have no right to use the technology.
And it is also quite beside the point, because I don't think anyone is making the argument that no one can use the specific technology (e.g. encryption), the question is rather whether someone who has already used it can be compelled to reveal the secrets against his will.
> Thus, if computers increase the capability of law enforcement (e.g. to wiretap at scale or search recorded communications without individual law enforcement officials having to listen to them) then the individual's rights against government surveillance must also be increased.
But that's just it. The people have far more ability now to keep their communications secret than they have ever had before. It makes no sense to say that the individual has either less or the same ability to keep their communications secret. PGP has been around how long?
The fact is that people don't care. Maybe they will in the future, but I doubt it given the rise of mobile and its corresponding dependence on the cloud.
The obvious counterargument is that it would have to be a two way street or you would have endlessly expanding government powers. Thus, if computers increase the capability of law enforcement (e.g. to wiretap at scale or search recorded communications without individual law enforcement officials having to listen to them) then the individual's rights against government surveillance must also be increased.
Moreover, if the argument is that we need to maintain the historical balance between privacy and law enforcement interests then even the existing powers of law enforcement go too far, because the technology available to law enforcement officials when the amendments in the Bill of Rights were adopted didn't allow real-time communication between individuals to be recorded whatsoever.
And I have to imagine a lawyer would ask what case establishes this legal theory of government automatically gaining new powers as a result of technological advances, because I'm not aware of any such precedent.
> Consider a car analogy: you must display visible license plates to identify your vehicle whenever it is on the road, yet that was never required for horses, carriages, bicycles, or any previous mode of transportation.
It is easy to draw a distinction between cars and computers because the reason we require identification for cars is not that they are more powerful than bicycles etc., it is that they are more dangerous. Computers, by contrast, are for the most part not dangerous at all. No innocent bystanders are killed when someone uses the internet while intoxicated. Moreover, we can see how the distinction plays out with automobiles, because anyone can use mass transit anonymously, which is clearly much more powerful than a bicycle in rapidly getting you from here to there, but also not very dangerous.
> It is assumed that the spirit of the law must be upheld. If the police are legally allowed to wiretap a suspect as part of an investigation, then encryption must not be allowed to get in the way of that. In other words, technology must not defeat the law, even in spirit.
I'm not seeing any coherent principle in this argument. If the police are legally allowed to stand in the street and look at you through the window when you are standing in your living room, then a curtain "must not be allowed to get in the way of that"?
It seems obvious that just because the use of a technology makes the jobs of law enforcement more difficult doesn't mean that people have no right to use the technology.
And it is also quite beside the point, because I don't think anyone is making the argument that no one can use the specific technology (e.g. encryption), the question is rather whether someone who has already used it can be compelled to reveal the secrets against his will.