I see where you're coming from, but a few observations:
- The judicial branch is wading through this question now (sometimes allowing compulsion, often not); it's not a question for Congress to answer, as appealing as it might be to them to help us redefine our Constitutional rights.
- We're in the analogy danger zone, but would you say that your phone is more like a safe or more like an extension of your mind? What do you think your answer will be 10 years from now? 20 years from now?
- Dragnet vs. compelled disclosure is a false dichotomy. The NSA and friends will continue their collection of data + metadata at scale, regardless of the outcome here.
Very much more like a safe. "Extension of the mind" feels like nerd babble.
If you insist on this line of thought there is actually a close analogue that has been around for centuries: the diary.
People have been writing down their private, even intimate thoughts in diaries, and nobody is surprised that diaries can be seized and used as evidence in a court of law.
If we could ever scan your neurons and determine data from them would you be ok with that? While I can't imagine them pulling out whole thoughts I can imagine them extracting phone numbers as an example. Sure that might be 100-200-500 years in the future. I have no idea but unless you believe the data in your brain is stored in your sole it seems reasonable to believe someday there could be a device that could dump your brain the same way we can dump memory from other devices and that certain pieces of data will be able to be extracted.
Is that the same? Different? Okay? Not okay?
Or how about closer to reality: Memory enhancing chips are already available/in the works (https://www.technologyreview.com/s/513681/memory-implants/) should someone using those be required to allow the government to get a data dump of them?
> If we could ever scan your neurons and determine data from them would you be ok with that?
The premise behind the self-incrimination privilege is that coerced confessions are not just unfair, they are unreliable. If you can scan neurons directly (and reliably), that rationale doesn't apply.
And in any case, I don't see the slippery slope here. Your phone and a diary are both external things where you voluntarily put information--completely different from scanning your brain.
Both writing and computers are tools for the mind. To the degree that you create a large distinction between them, you privilege people who don't need tools over those who do.
(I don't really see much difference between scanning neurons and scanning phones. I don't see that one can use phones without involuntarily putting information into them. As hard as I try to ensure my phone's Chrome browser doesn't store my browsing history, Google works just as hard to ensure that it does.)
(PS: on the topic of a bunch of people from the government scanning your neurons looking for stored thoughts: it's a horrifying world I want no part of, because such power would be abused to eliminate dissent. Governments are constructed by people, and people are not to be trusted with that kind of power.)
> The judicial branch is wading through this question now (sometimes allowing compulsion, often not); it's not a question for Congress to answer, as appealing as it might be to them to help us redefine our Constitutional rights.
IANAL, but from what I recall, the entire point of the legislative branch is to create, remove, and re-define constitutional rights. The judicial affirms what they are, and the executive violates them. (Sorry, is that too on-the-nose?)
This is pretty close, but I would phrase it as the legislative branch gets to write the "fine print" of constitutional rights. Often the constitution is vague enough that the legislature has a large amount of creative license; sometimes though particular rights are given by the constitution or an amendment, in which case changing it in a large way, or removing it, requires another amendment - or else such attempted changes may be struck down by judicial challenge.
The full US process could be summed as: The Constitution defines some rights and laws. Congress is empowered to grant additional rights and make additional laws. Congress also implements and defines rights and laws contained in the Constitution. If a citizen feels the Constitution has been violated by Congress, then the judicial system (headed by the Supreme Court) decides whether to invalidate the law(s) or not. If a majority of citizens wish to change the Constitution, then there is an amendment process.
The legislative branch can not create laws that change the definition of what rights are constitutionally protected or interpreted through the normal legislative process. The SCOTUS in fact can strike down laws that are passed but are deemed in violation of the US constitution. There is a process to change the constitution, but it is hard by design.
IANAL either, not even an American, but I know there's a very objective process for the US legislative to change the constitution, which is hard by design.
The Gp's criticism is based on the unstated assumption that they'll try to bypass that process.
>would you say that your phone is more like a safe or more like an extension of your mind?
Your phone is an extension of your nervous system.
Marshall McLuhan claimed that all media and technologies were extensions of a human function. Clothes extend the skin, the wheel extends the foot, and electric media extends the central nervous system.
>Men are suddenly nomadic gatherers of knowledge, nomadic as never before, informed as never before, free from fragmentary specialism as never before - but also involved in the total social process as never before, since with electricity we extend our central nervous system globally, instantly, interrelating every human experience.
It's exactly what Congress is for. Compelling a citizen to provide a password is a gray area wrt 5th amendment because the founders didn't foresee it. Judges have to make their best guess. Congress can set the law explicitly.
Re dragnet vs compelled. The difference is I can provide strongest security possible that stops most of that and black hats without trying to get a perfect backdoors right. Then, only only a tiny fraction of users are at risk via that system to organizations their lawyers have a chance against.
- The judicial branch is wading through this question now (sometimes allowing compulsion, often not); it's not a question for Congress to answer, as appealing as it might be to them to help us redefine our Constitutional rights.
- We're in the analogy danger zone, but would you say that your phone is more like a safe or more like an extension of your mind? What do you think your answer will be 10 years from now? 20 years from now?
- Dragnet vs. compelled disclosure is a false dichotomy. The NSA and friends will continue their collection of data + metadata at scale, regardless of the outcome here.