CRYPTO AND PRIVACY VILLAGE - Hamilton’s Private Key: American Exceptionalism and the Right to Anonymity

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CRYPTO AND PRIVACY VILLAGE - Hamilton’s Private Key: American Exceptionalism and the Right to Anonymity
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welcome to today's second talk by Jeff Joseph from the Naval Academy on Hamilton's private key let's give a big hand to so thank you so much for having me here I'm really excited to be here to be talking about probably a different topic than is being covered at most as Def Con but I promise you we'll see how it is relevant by the end of the presentation and just a very bit of background about me and what my interests are I'm a professor at the u.s. Naval Academy cyber science department and it matter okay so I thought that I actually I'm just getting over a cold in August which is kind of odd but so please let me know if you have any trouble hearing me so I'm a professor in the u.s. naval apart Department Abel Academy cyber science department and we have created a cyber operations major I've graduated our first class of undergraduate cyber ops majors in 2016 I it is now grown so that 10% of our rising sophomores at the entire Naval Academy are majoring in cyber operations so I'm really excited about that I'm a lawyer by training and I teach the Midshipmen about cyber security law and policy so that's my background and before I get into the substance of this presentation I have to give the standard disclaimer that they always make me give what I say today is not the view of the government Naval Academy Department of Navy who else Department of Defense my family doesn't usually like to go by what I say so sometimes I don't I'll back away from what I say so it's but these are just my views so with that and you'll see why in a second I want to talk today about the various debates about encryption and other privacy protective technologies and this has been going on obviously for decades but it kind of got revived in the past few years with few court cases and statements from law enforcement officials and I want to start off with the proposition because I'm a lawyer I work with a lot of computer scientists and engineers but I am NOT one I try to be but I am not very good at it but I you I am a lawyer I make arguments for companies for individuals on cybersecurity matters and when I take a step back and look at the public debate about encryption and other privacy protective technologies I frankly get really worried because I am a strong believer in encryption and other technologies that protect content identities metadata anonymity I think that it is necessary for national security I work with a lot of folks from intelligence agencies and strong encryption is vital that said the debates and even the successes that the crypto community has had recently I worry about their ability to endure facing challenges that we might see in the future so what I want to do is come up with some ideas some other ways to sort of position the debate that might be able to succeed in the future and again what I'm going to talk about is just one of many arguments that could be made and I'm gonna mention other ways that other arguments in favor of encryption and other technologies but this is just one example I frankly believe has not been made nearly enough in this context so just to sort of frame this in one of the more recent series of debates obviously I'm sure you all know very a lot about the recent Apple vs. FBI both court debates and also in the public forum I've seen many I'm sure many of you saw former director Comey testifying but in I think it was the Senate about the dangers of unbreakable encryption and there were a few there were a few court disputes about this the most common one or the most sir sited one was the San Bernardino shooter who after he died the government tried to get Apple to help unlock his phone and it never resulted in a decision on the merits because the FBI was able to have a third party help them access the phone there was a less high-profile case but I think much more important that was going on in Brooklyn in 26th 2015 and this was a drug dealer or suspected drug dealer had been arrested the DEA and FBI got a warrant to search his iPhone 5s I believe and there wasn't the issue of the auto life after 10 incorrect tries but the FBI said that it was unable to get into the phone so what the so they sought this order from Apple and also
just to say the alleged drug dealer said that he forgot his iphone passcode which I it's clever may be true may not be but so what the FBI did was they went to the court and it goes to a magistrate judge and a magistrate judge is kind of the lowest level judge on the federal system they're appointed for eight year terms rather than for a life they're not confirmed by the Senate and he went to the or that B I went to this judge and sought an order under what's up here the hall Rights Act and this was a law it's changed a little bit in wording but it was passed in 1789 signed into law by George Washington and what the government said was under this law we have a warrant and now we need a writ basically an order necessary or appropriate in aid of the court's jurisdiction and agreeable to the usages and principles of law and that means Apple needs to help us access this information so that makes sense right you look at that and think that's what that means and they're actually these orders had been issued quite frequently but for the FBI is bad luck they ended up going in front of Magistrate Judge Ernst Brooklyn that was really unfortunate for them because judge Ornstein had some concerns about this and he actually forced the parties Apple and the federal government to go to court and argue about does the all rich require this and the all rich Act require this Apple said no and the government said yes and judge Bernstein issued a 50-page opinion and I cannot stress the number of these requests that magistrate judges get every day is overwhelming and so for him to issue a 50 page opinion on this means that he had strong feelings and I just excerpted some of it here he used the he used the word absurd probably I don't even know how many times but he basically said that all writs act was a gap-filler statute but it was never intended to get the courts to basically order companies to do whatever the courts or the federal government want and he pointed to something called colio which I'm sure many of you are familiar with which was passed Q require telecommunications service providers like the phone companies to assist in the execution or to make their network susceptible to the execution of wiretap orders and he's what he said is the the kuya does not cover companies like Apple and they're specifically excluded so he said you know if Congress looked at one type of company and said they do have to insist have to assist but did not with another type of company then it would be stretching basically the separation of powers to say that the judiciary could read this into this law and there was an undertone in the statement that was basically saying you know this is an old law and encryption is a new the Apple iPhones or new thing and I'm not I'm not going to stretch it to this level and I have mixed feelings about his order on a policy level just in terms of what the outcome was I think it's a good eye yeah but I also think that invalidating a statue or invalidating the use of a statute because it's old it might not be the best way to go about things because we have a lot of old laws on the books the all writs act is part of the Judiciary Act of 1789 which created all of our federal courts other than the Supreme Court because the Supreme Court's the only court that you require to exist under the Constitution Congress creates all the other courts I would never say well you know I don't think these parts are valid anymore because they're authorized under a new law but so so I'm not sure about the reasoning I think there's been a lot of debate about what he did but let's just say that judge Augustine was right and that other courts would Adrienne would adopt his reasoning we've got a problem here if we want to protect strong encryption for the long term and that's because what judge Ornstein is saying is Congress didn't pass a law that allows this Congress could pass a law that allows various restrictions on encryption on anonymity on privacy protective technologies and I know this sounds like a bit of a conspiracy theory for those of you who were of my age range you probably remember what Congress did in 2001 right after the devastating terrorist attacks they passed the Patriot Act with barely any opposition so for for anyone to think that that Allah could not be more restrictive I think we have to look back in history so that gets me thinking what are the defense's that would endure past a congressional action on encryption what
I always like to do is look at the Constitution is there a constitutional right to privacy anonymity and extending that over to encryption now now that's a tough one because the United States Constitution does not have an explicit right to privacy other nations do in their constitutions or charters of Human Rights but the US doesn't so we have to we have to start looking at where could we find this right so I like to look at the Constitution and I'm just looking at some possibilities and I'll get to the one that I really like the right after this but there's the Second Amendment which actually provides a right to bear arms and there actually happened some scholars who have said that or I don't know if they're scholars but lawyers have said that encryption and cyber defenses are arms and the Second Amendment attaches to that I've been in a lot of courtrooms and I would never be comfortable going to judge and making that argument because they they would laugh and probably sanction me so I'm probably not I think that's not gonna work the third amendment I have a red exclamation point because it's my favorite Amendment it's an amendment that says that so doors do not force it's an amendment that says soldiers cannot force people to quarter them in their homes during times of peace and only Congress can authorize quartering in times of war now there have been some lawyers a few who have said this prohibits the NSA from operating in private networks because the NSA's operations are like quartering in someone's home that basically my reaction is the same as the Second Amendment I don't think that's gonna be very useful the Fourth Amendment this is one that has more merit especially I'm sure many of you know the carpenter' decision that came out from the Supreme Court recently and that basically gave Fourth Amendment expectation of privacy in cell-site information so the Fourth Amendment's useful what often gets overlooked there's a lot of these encryption disputes happen after a warrant has been issued so the Fourth Amendment has a warrant requirement and a reasonableness requirement so I'm concerned that the 4th amendment would be of limited utility for a broad defense of privacy protecting technologies and the other issue is the main remedy under the Fourth Amendment is suppression of evidence in a criminal case there you can assume for Fourth Amendment violations but if we're talking outside of the criminal realm that's where I get a little concerned Fifth Amendment actually can be helpful on what we've all seen in movies the Miranda rights you have the right to remain silent that's all originates from the right against self-incrimination there have been a lot of really interesting cases in the past five years where the government tries to compel people to enter their codes on their phones or their computers and we've had mixed results the first thing is that it only applies if it's testimonial so if you have a thumbprint this is not legal advice but if you have a thumbprint on your phone and cannot rely on the Fifth Amendment to protect against compelled unlocking of your phone the other big limitation is even if you're forced to say the code that could be seen as testimonial but the problem is if it's already known that it's your phone so if you've said to the police hey that's my phone give it back and it's known as what's a foregone conclusion so that's not going to help you all that much so again that has limited utility the ninth amendment this is a lot of it's an amendment that basically says the enumeration of rights in the Constitution does not mean that you can encumber other existing rights this is kind of a big academic debate I've not seen it that much in the encryption discussion the final the the final amendment that I'd like that I think is worth considering is that you process clause of the fourteenth amendment that actually there's been a right to privacy you read into that that's where Roe versus Wade originates from as well as the right to contraception there has not been a tremendous amount of focus on digital privacy in as applied to the 14th amendment I think there actually could be I think it's a good idea there hasn't been very much California actually does have an explicit right to privacy in its constitution and they've had a number of really interesting cases involving online privacy but I don't but unfortunately the California Constitution is just in California and I think that if you went to the US Supreme Court and to help them to apply the California Constitution you would laugh so that's not going to happen so what I want to go to you is the First Amendment it's my favorite Amendment and this is admitting my bias and the former journalist I felt myself of the First Amendment quite a bit and what I want to look at is ten words within the First Amendment because there's a lot of great stuff about religion but that's for another day Congress shall make no law abridging the freedom of speech that is pretty darn simple if you look at the free expression rights and the Constitution's and charters of other countries they kind of read like an iTunes Terms of Service Agreement and I apologize for anyone from Apple but they have exceptions they say it doesn't apply in this case the US is different you don't have that in the Constitution that's not to say that the Supreme Court has not read some of some exceptions there's exceptions for imminent incitement of lawless action there's exceptions for obscenity so things like child pornography and but if there is a sort of non exempt type of speech the part applies various types of scrutiny so if it's a content-neutral regulation so for example if the town says if my town were to say that you can't play music above a certain decibel rubber after a certain time that's gonna be easier to justify if the town says Jeff's music is terrible he cannot play music after a certain time that's content-based that's pretty difficult if not impossible to justify so that's the framework of the First Amendment now how it's applied to encryption I'm sure many know about the bernstein verse DOJ case from the Ninth Circuit this was back it actually was through the 90s there were a number of iterations of it but what the Ninth Circuit looked at is whether the federal government could require a license a really onerous licensing process for the publication of both an article and source code about it further caption and what the Ninth Circuit did is they said this is unconstitutional under the First Amendment but they looked at an interesting angle and to do that they went back to a case from 1919 70s I mean were times vers us and in that case the New York Times was going to be publishing the Pentagon Papers and this was a classified document that highlighted the US government's missteps in Vietnam it was very embarrassing to the government so the government saw an injunction to prevent the publication this is what's known as a prior restraint preventing speech from happening in the first place and what the Ninth Circuit or what the Supreme Court said is a prior restraint is one
of the greatest forms of First Amendment violations it's not like punishing someone after speeches occurred a prior restraint is actually stopping the speech and you have to have an exceptionally strong compelling case for that so the Ninth Circuit apply at that precedent and so this is the same thing this is a prior restraint on speech you're preventing the publication of an article and in source code I'm not an important ruling from this case is that coded speech which has been used in a number of other contexts but one thing that I quote over here which is really interesting the part said this affects other rights such as the right to speak on it anonymously the right against compelled speech the right to free informational privacy when the government restricts encryption but we leave that for another day so this is a day that I think we've got to start talking about it because I think that the Bernstein case could be useful for further to argue against further restrictions but for example but there are a lot of other ways other than publishing the code that the encryption and other technologies could be regulated and I'm not sure if a part would say that's a prior restraint I think it might but we've got to get more creative and have sort of a larger frame of arguments so that's where I want to start talking about how the First Amendment applies to anonymity and the first thing that I want to talk about is obviously encryption and anonymity and not synonymous but there's a growing recognition that they work hand-in-hand together and certainly anonymity technologies rely on encryption encryption promotes anonymity this is a report from the UN Special Rapporteur on freedom of expression saying yeah obviously metadata that identifies a person is different than encrypting the content of the communication but big butts working together they create a zone of privacy and that's what that's what I think is missing I think we look at issues in buckets we look at encryption we look at anonymity and you have to start looking at what are the fundamental values for why we protect each and how do they work together so I think the best way to understand the u.s. which I will say from the begin and this is not because I'm a federal employee I will say the United States has an exceptional right anonymity it is compared to other countries we value anonymous speech anonymous expression far more than many other countries even some may surprise you so you look at some of the various privacy and anonymity restrictions China's requirement that companies host encryption keys within China even though they say there are various restrictions that prevent the government from accessing and I'll leave that to your judgment China also prevent it has a real name law which says that you can't post anything online without using your real name over in Russia they've recently blocked telegram because they said terrorists use it they also brought VPN laws which some critics say is because they might allow some sort of an anti government resources but it's not just the countries that we might question their true democratic values other countries throughout Europe there have been there's been a lot of criticism of their of anonymity online anonymity Europe values traditional informational privacy I think there's there could be an argument that that comes at the expense of free expression you could look at that with the recent GDP our privacy regulations which resulted in some newspapers not even being accessible in Europe some of US newspapers and you might say it's because the newspapers failed to comply with the privacy regulation but that demonstrates this tension that we have between sort of traditional privacy values and free speech so to understand why and how the United States has these extraordinary protections for anonymity you have to think back before our founding so this is John Penry he was a 16th century Protestant minister from Wales she and a colleague John Udall had published a series of checks that basically very strongly criticized the Anglican Church which was not a good idea in those days in Wales and they so they published them under Martyn Marple a pseudonym and unfortunately for John Penry there was not very strong heat or did not exist then so he was tracked down he was tried within a day and hung in the public square at 4:00 p.m. so that kind of framed as the colonies were looking at speech what they believed about the need to communicate privately and anonymously this guy had a better view of a better success of this Alexander Hamilton so he well he was successful until he was shot my dual but that's a whole different but and until that point he was pretty successful so he was to understand why he published anonymously you have to understand our country's history so for the first ten years of the United States we operated under Confederated government and that Confederated government was just god-awful it was terrible it basically there was no real central government we had a president in Congress but they couldn't do anything because they had no ability to tax they had no central dead no military that there are little policy ability so the stage for doing everything so you had every state triking striking trade deals with other countries you had States cleaning their own money and stage trying to unilaterally defend themselves until it was a rebellion and the state couldn't do it so this caused Congress to call a constitutional convention and Alexander Hamilton was among the leaders who said okay we found this compromise where we have the house represented by population the Senate representative my state other ways to sort of balance the concerns of large states and small states so Congress approves the Constitution but the states need to ratify it so Hamilton and a big concern was New York because New York did not want to cede so much power to smaller state you know to pick on Rhode Island but Rhode Island and so what they wanted to do is make their arguments and they were very prominent figures but they didn't want themselves to be the focus of these arguments so what they did is they started sending essays to newspapers throughout New York and they eventually became known as the Federalist Papers and they signed them not with their names but with a pseudonym Publius and the best explain there were a few reasons one was a fear of persecution they did not want to be persecuted for their beliefs but there were other reasons also Alvin in the first Federalist paper I think he made one of the best arguments for anonymity and privacy my motives must remain in the depository of my own breasts my arguments will be open to all and may be judged by all they shall at least be offered in a spirit which will
not disgrace the cause of truth so that was his argument for anonymity and it prevailed so the Supreme Court started to recognize a minima T is the heart of the u.s. democracy the first case to really recognize this was in 1958 there's a case called n-double-a-cp versus Alabama this was during the civil rights movement desegregation the Alabama state government started trying to pass laws to really crack down on opposition groups they viewed as opposing them including the n-double-a-cp none of the laws were fired the publication of the names of everyone who is a member and an officer and the Supreme Court said you can't do that they said by doing that even though it's not restricting them from speaking directly by associating their names with an unpopular group that can actually that has been persecuted you're killing their speech and that and that violates the First Amendment so that was really it was interesting because it wasn't a direct restriction on speech but it was a restriction on Association the next case came a few years later this was someone who was collecting signatures and are campaigning for against companies in Los Angeles that discriminated against racial minorities in employment he distributed these pamphlets without his name on it that violated the Los Angeles ordinance the retired people to identify the zones and the Supreme Court at this point went all in on the history he started talking about Johnny Henry and saying we don't want to live in a society like that and even the Federalist Papers demonstrate that anonymity is used for the most constructive purposes so this was probably the high-water mark for for anonymity this was the Supreme Court saying this is part of our history so we have tally but that which which applied to all handles but the problem was there were other states that started saying okay we won't restrict all communications but we will restrict any communications related to elections because that there's a an interest in doing that so our hyoe is one of the states that said if you are a if you're camping for a ballot initiative or a candidate you have to use your name on any of the campaign materials there's a woman named Margaret McIntyre who did not want a school bond cast through a referendum so she started distributing materials without her name woman the Supreme Court said you cannot find her because even though this is just restricted to elections again this is an unpopular view she's going around saying I don't want the schools to be funded she can remain anonymous the next case was a little different it involved a requirement that people collect ballot initiatives have to wear ID badges with their real names the Supreme Court once again said this violates the First Amendment going back to the Federalist Papers Kelly McIntyre and the most recent case not all that reason anymore was an ordinance that said if you campaign door to door you have to register with your real name with the government and what the government said is if you're going door to door people see your face it doesn't matter and the Supreme Court disagreed and said again this basically will chill speech and it will make it more difficult for people to to speak because they might not want their names to be on record with the government so that's the Supreme Court stance on anonymity now how does it apply online it actually has applied online pretty pretty robustly so actually just to just to back up the way that typically works there have been a lot of disputes you may have heard of them where someone is sued for violating a for defaming someone online so there's an anonymous poster on a bulletin board online or in a newspaper in a news websites comments who posts anonymously or pseudonymous lee says something that really upsets the subject the subject wants to sue they don't know who to sue because they can't sue someone named anonymous or whatever they want to put on there they also just can gently they can't sue the website there's along the books called section 230 of the Communications Decency Act I have a book coming out about it and explain please buy it it's a great betrayed and that what that law says is that you can't sue a website except in very limited circumstances for content created by third parties so I've got to find it if they want to sue they need to find out who they're suing so typically what they do and this is the very easiest scenario typically it's much more complex but the file a lawsuit against someone named John Doe and then they use discovery in a case to issue a
subpoena to the website for the IP address and any registration information sometimes the sites require email addresses and then if they have the IP address they go to the ISP an issue a second subpoena for the subscriber information and as you all might expect there have been some hilarious mishaps and identifying grandparents who don't secure their Wi-Fi connections which I'm sure is not an issue for anyone in this room that that's the easiest way there's obviously a lot of glitches in it so what courts had to do is say okay we have mcintyre we have all these cases that say there's a right to anonymity how does this apply on the internet the first case to deal with this was a case where the company Columbia insurance on sees candy which seems to be in every shop United States there was someone who registered that sees candy calm domain but it was anonymous and so Columbia Insurance wanted to get the identifying information about this person who registered it and the part had never really confronted it before and they said okay we'll let you have the discovery but you have to really tell us why you need it and what other steps you've taken so that was the first case it didn't go through all that much detail the first big case was a a publicly traded ISP called to the Mart there were investors who are people who commented on the investments in the stock who did not like the management I posted a few of the comments up here that that they added and then subsequently they were the company was sued by shareholders so what truth amount wanted to do is find out who posted these comments so they subpoenaed the company that owned the website and said you want to know who these people are so what you the mark said is McIntyre doesn't apply because one of the users challenged it and said this violates my First Amendment rights and argument there was that McIntyre and all those other cases involved the restrictions on the ability to speak all of these people spoke already there's no right to remain anonymous forever and the court basically soundly rejected this I said if you don't have the right to remain anonymous then you don't have the right to speak anonymously and I set forth the test that basically looks at how strong is your case are you trying to harass people do you need this information and then the Corp said we're not going to grant it we're going to get rid of the subpoena and they made some great statements about how the free exchange of ideas is so important on the internet for First Amendment purposes there's another case a few months later called dendrite international video again this was company and just as a side note any lawyers who deal with defamation cases see the companies that have P post about their share prices are among the most common plaintiffs in these defamation cases and so they were saying so it was a typical case the company wanted to get the identifying information about the posters and the poster and the posters challenged that and the court said no you can't do that because we don't have any evidence that this really harmed the share prices of the company and the last sort of defamation case there was a city councilman in Delaware and someone posted something saying that he demonstrates obvious mental deterioration on a local news blog councilman was not happy about this filed the typical lawsuit and the court here said we're going to apply a really high standard that's really difficult to me and he didn't need so these are some examples of how courts have really said anonymity is at the center of our of us First Amendment law an interesting case not in the defamation context Doe v Harris the Harris in this case is Senator Kamala Harris who is the Attorney General of California at the time every state has a sex offender registry law the California law was amended to say that sex offender offenders have to register all up their internet identifiers and there is PS and a chalice Lea obtained a preliminary injunction saying this violates the First Amendment because you can't speak anonymously if you have to register all your names with the government and the Ninth Circuit said yeah this isn't the classical anonymous speech case but it chills anonymous speech because of this disclosure requirement and now the Ninth Circuit I'll full disclosure I clerked for a judge on the 9th Circuit the Ninth Circuit has a reputation of not always following what the Supreme Court might want the Ninth Circuit to follow there was a judge who actually recently passed
away who had a famous saying that the Supreme Court can't catch them all so my you might think that this is a really liberal ruling but the author of this ruling is a judge named Jay Bybee who some of you may know he was a plaintiff at george w bush but he worked earlier in the bush administration and he was one of the authors of the torture memos so this isn't some sort of radical liberal saying this this is a fairly conservative judge saying even in this case where the defendants are not sympathetic we're going to find that they have this right to anonymous speech and then finally there was a case recently in the DC Circuit the appeals court in Washington DC which basically there was a challenge to the FEC rules that said you only have to disclose the names of people who donate to companies for election communications but not for other types of communications and the a fee so the FEC said one of the reasons they justified it is said well you know we need to safeguard anonymous speech so this is a balance and the DC Circuit agreed with that and said that these sort of this is firmly entrenched in those Supreme Court's First Amendment jurisprudence so they recognized the strong right and to anonymity in a different context so to apply these rights I just want to stress that obviously we've not confronted a case on anonymous speech fight like this but I think we need to start thinking about how we can make these arguments effective and as I think I have shown today this is an extraordinary right that we have in the United States and if you think about the various ways that governments and other countries crack down on VPNs on anonymity technologies on encryption that can really tell this anonymous speech that has been at or from other democracies since our founding but there's another reason and i I've lived in the Washington DC area for a long time so I can think of things and policy political terms and one judge I remember saying that the Supreme Court is the most powerful policymaking body in the United States the Chief Justice of the Supreme Court likes to say that he calls balls and strikes but there are a lot of cases where it does come down to a policy judgment and the First Amendment is a place where the First Amendment the First Amendment is winning in the Supreme Court these are just some recent cases where the Supreme Court has decided First Amendment issues and it's almost always deciding it in favor First Amendment rights now there's Citizens United which I imagine some people are not all that thrilled about which allows unlimited expenditures for campaigns there's also a USB algorithms that was a case where the Supreme Court said you can't ban the speech or you can exempt you to speech from the First Amendment simply because it's a lie that was a case where there was something called The Stolen Valor Act which made it a crime to lie about military honors someone was running for a local government position and he made the statement in public firm that he was the recipient of the Congressional Medal of Honor which is not really bright because there's very few living people who are the recipients of it you would lie about something different so he was prosecuted but the Supreme Court said you cannot prosecute someone just for light Schneider V Phelps that involved the fine people from the Westboro Baptist Church who picketed the funeral of a fallen soldier and the family sued the church for intentional infliction of emotional distress the Supreme Court expressed significant sympathy for the family but said you know we the First Amendment prevails agency for international development that involved a restriction on age funding the age prevention funding to nonprofit organizations that had a string attached saying you had to make a statement against prostitution that was found to be compelled speech the Janis case that actually was was issued a few months ago that's where the supreme court said you that that state employees cannot be compelled to donate to unions and finally USB Stevens that struck down a ban on depiction on animal cruelty so there's some sort of theories from some people that say well the the supreme court is weaponizing the first amendment in favor of corporations with cases like Janis and citizens united others say you know the First Amendment is just at its highest peak right now so that's the political reason and it feels weird to talk about the politics of the supreme court but if there's a challenge to
encryption other privacy protecting technologies I really do think that sort of focusing on this line of reasoning that goes back to our nation's history could be a very successful way to go rather than sort of rehashing the same arguments about how statutes work and obviously there are pragmatic considerations such as you can't ban math but that's a whole other situation but but again I think we need to be focusing on the best constitutional arguments and I think this is a good place to start so I wanted to leave a little time for questions or comments or anything like that because I do want it to be a dialogue Oh that's also loud a lot of your conversation seems to be about protecting privacy between individuals in the government what about individuals and corporations which are way worse offenders in my opinion and also the government's ability to get your information from corporations and you're completely outside the decision-making matrix on that yeah that's a great point and I think that keeping information from corporations is one step in sort of preventing both the corporations and governments from doing it from from obtaining it but a lot of these anonymity cases it was corporations seeking the data so I think that protecting strong encryption and other technologies is a way to both have privacy from the government and from corporations absolutely thank you so obviously there's been a lot of talk recently about you know fake news and the whole idea of that and I was I was just to get your thoughts on I mean obviously you mentioned us Alvarez case or whatever like that you know about lying or whatever but how do you feel like that's gonna fit into the whole picture as people you know as there's all this talk about cracking down on fake news you know and that sort of thing like what how do you think that that's gonna play into all of this so I think it's dangerous I think the fake news like the crazy things on Facebook that pop up that it's a problem but I also worry about government regulations that will say what types of news that you can and can't broadcast or put on a platform because who's making those judgments I think I will give them credit a lot of the platforms Twitter Facebook they've started to make much better efforts along those lines and it is market-based I mean if I would hope it would be that if you continue to get garbage news from a platform you'll go to another platform obviously there are economic barriers to that but I I don't see under the First Amendment precedent how the government would be able to restrict that hi so in the context of that 3d printed gun design case that's going on right now is there anything that says that like it's futile so we shouldn't restrict this speech and generally what do you think about that case so that's a good question and I think we need to distinguish between sort of the design and the actual manufacturer I I have trouble seeing that that it's speech itself the actual gun making 3d printed gun so I think that it would be tough to really meet a strong enough First Amendment argument on that Thanks just want to ask a little more broad question to you about you early on in your talk you talked about how I'm poking at early precedents in early legal precedents in our history could kind of open up a can of worms where like more and more laws upon which our entire system of government in his face could be it caught up called into question and I'm just wondering if your if like all the things that are going on in our democracy right now around like perhaps laws that aren't being broken but precedents that are being routed right by the executive branch and others I'm interested to hear your general concerns about the extent to which our system of government is dependent on precedents and other customs that are not actually codified into law and whether we're seeing threats that significant threats I guess as a result of those precedents that are being floated that aren't necessarily laws themselves so you're talking about norms of behavior yeah yeah in in all three Exec all three branches of government right yeah I mean I and the press for
that matter as well yeah I think there's
blame to go around in terms of various terms I think there a lot of norms been floated for a long time I I think for courts it's a little different Justice Breyer has this theory of active liberty that basically the Constitution we need to interpret the Constitution in light of today's setting and in that context the late Justice Scalia had a very strong original US patent where it said you need to interpret the Constitution as it would have been interpreted in the 1700s I've got to say justice Breyers reasoning is more compelling and we have a lot of rights and very positive developments because of this act of Liberty viewpoint but I think that norms are tough because if they're not codified into a statute or in the Constitution or regulations there is room to deviate and that's I mean I've always been a big believer in getting things into statutes because then we're then we don't have to worry as much about what is the norm who's violating it so are you worried that these norms are going to lead to sort of deterioration of our democracy yeah I mean I so my specialty is the
online speech cybersecurity and I worry about the norms of behavior online and I mean I think this is this has been for 10 20 years now but I think that the way we talk a lot about what's Twitter's
responsibility he wants Facebook's responsibility but I worry a lot of it is that people how I mean if
you don't have the bad behavior then you're not going to have the problems and I I think that that's what concerns me the most I mean you you see what people do online and you think what they do it in person face-to-face and I didn't so I mean that that's frankly because that's what I really specialize in when I look at I mean I see a lot of what my observed moderators and how they moderated content and that really concerns me because I don't know how you solve people we some people being horrible people that's not yeah thank you I was mostly asking about the way our government officials are behaving in their flouting of norms but I've already taken too much time so thanks a lot for your time yeah hi I can't remember his name so if you do you tell me but a British statesman once said your right to do as you please stops at the tip of my nose where's the other side in other words what protects me against your First Amendment rights if the right to lie is protected that that's a good question and if you look at other countries it's the reverse that your Europe for example for the past few years has recognized a right to be forgotten if you if there's something online that you believe is harmful to you either false or true you can demand that it be de-indexed from search engines so if someone searches for your name they're not going to get the result there's a trade-off with free expression because I think it's a little overwhelming to erase history and in the United States that would apply but I think that's just a value judgment I think you make a really good point though that's definitely a very strong counter-argument to a free expression thank you a bill rang with me a little bit when you were talking about you know how when do people know when it's right or it's wrong and kind of an education and so one of the things that comes to mind is education and do you see anonymity and privacy playing a role within education k12 within the next generation to kind of circle I'm sorry I didn't quite hear that how would you see the ideas on anonymity and privacy playing a role within k-12 education in the future years in order to circumvent that entire issue that we have going on of people knowing the difference between right and wrong when conducting themselves on the Internet I think so at the K through 12 level California for example has passed a law that allows minors to request the deletion of information they've provided to say once they turn 18 and I so I think that's there's some trade-offs but that's generally a positive development because I didn't have social media when I was in high school but I sure as hell would have posted stupid stuff on there that I want offline so would you say there's a need for that in K to 12 I think so for K through 12 my yeah because I mean I I have a four year old daughter and I'm gonna keep her offline as long as humanly possible so yeah absolutely awesome thank you sure okay I think I think we're at ten fifty so thank you very much
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