[Cryptography] Third amendment crypto defenses

[Henry Baker]

At 11:46 AM 11/7/2014, Phillip Hallam-Baker wrote:
>No Soldier shall, in time of peace be quartered in any house, without
>the consent of the Owner, nor in time of war, but in a manner to be
>prescribed by law.
>
>One of the main differences between GCHQ and the NSA is that GCHQ
>reports to the foreign office while the NSA is a part of the military.
>This has profound implications for the way that the NSA works. It is
>also an issue that might well be fixable under the next
>administration.
>
>The problem with the NSA at present is that it puts far too much power
>in the hands of the military. The CIA was under the remit of the
>Secretary of State before it was put under the DNI because it is a bad
>idea to have a bunch of spooks advising third world generals on how to
>enact a coup d'etat to be reporting to your own generals.
>
>The NSA has been promoting its notion of 'cyberwarriors' performing
>attacks. They have also been performing work for the FBI which lacks
>the necessary skills to intercept many modern communications. Looking
>at the third amendment, I think there is a reasonable interpretation
>which would find that the military should not have anything to do with
>such activities.

FYI -- Here are some references & articles:

The Third Amendment: Forgotten but Not Gone
Tom W. Bell

Tom W. Bell,The Third Amendment: Forgotten but Not Gone, 2 Wm. & Mary Bill Rts. J. 117 (1993),
http://scholarship.law.wm.edu/wmborj/vol2/iss1/4

"Pity the Third Amendment.  The other amendments of the United States
Constitution's Bill of Rights inspire public adoration and volumes of
legal research.  Meanwhile, the Third Amendment languishes in
comparative oblivion.  The scant attention that it does receive
usually fails to serve it well.  Lawyers twist it to fit absurd
claims, the popular press subjects it to ridicule, and academics
relegate it to footnotes.  Is this any way to treat a member of the
Bill of Rights?"

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http://www.usatoday.com/story/opinion/2013/07/22/third-amendment-nsa-spying-column/2573225/

Should 3rd Amendment prevent government spying?

Glenn Harlan Reynolds 11:24 a.m. EDT July 22, 2013

Technological advancements could call for an update to the amendment that protects us in our homes.

    Troop quartering also violated the notion of the home as a castle.
    Now we have electronic troops in the form of software, gadgets, and sensors.
    It seems clear that our government feels entirely comfortable violating people's right of privacy.

So a couple of weeks ago, I wrote about a Third Amendment case from Nevada in which a family's home was literally seized and occupied by police seeking a vantage point over their neighbor's home.  That case falls pretty much within the literal language of the Constitution's Third Amendment, which provides: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

But that led to some further thoughts. When the Framers drafted the Third Amendment, they had a specific evil in mind: The quartering of troops "upon" a population by the English crown.  As the term suggests, this wasn't just about getting a cheap place for soldiers to stay.  Forcing citizens to put up troops in their homes was expensive and the troops -- then drawn from the jails and gutters, for the most part -- were likely to rob, rape and assault members of the household at the least provocation.  Troop quartering was a way to punish a restive region that had been resisting the government.

But beyond that, troop quartering also violated one of the classic "rights of Englishmen," the notion of the home as a castle.  As the U.S. Court of Appeals for the Second Circuit said in one of the few Third Amendment cases ever to be heard, the Amendment was designed to assure a fundamental right of privacy.  If you think of it that way, what things does the government do that violate that privacy right today?

If the government places a surveillance device in your home, is that sufficiently like quartering troops there to trigger Third Amendment scrutiny?  What if it installs spyware on your computer or your cable modem?  What if it requires "smart meters" that allow moment-to-moment monitoring of your thermostat settings or toilet flushes?

The famous birth-control case of Griswold v. Connecticut invoked the Third Amendment, along with several others, with the Court asking, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?  The very idea is repulsive to the notions of privacy surrounding the marriage relationship."  If physically searching the bedroom is "repulsive," what about activating the camera on someone's laptop for remote viewing?  Or monitoring the "Skype sex" sessions of spouses who are apart?  How could that possibly be less repulsive?

These specific concerns weren't what the Framers had in mind.  In their day, to spy on a family in its own home, you'd have to put a soldier there.  But now we have electronic troops in the form of software, gadgets and sensors.  Maybe the law needs to take account of this.  We have updated our interpretations of the First Amendment to go beyond hand-operated letterpresses, the Second Amendment to go beyond flintlocks, and the rest of the Bill of Rights to account for technological change of all sorts.  Why not the Third Amendment, too?

In the wake of the various government-spying scandals that have broken this summer, it seems clear that our government feels entirely comfortable violating people's fundamental right of privacy, whether in their homes or out of it.  Big Brother wants the whole haystack of your data, in case it should later decide to look for a needle in there somewhere.  Should we invoke the Third Amendment to ensure that your home, at least, is safe?

Glenn Harlan Reynolds is professor of law at the University of Tennessee.  He blogs at InstaPundit.com.

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http://misguidedchildren.com/technology/2014/01/nsa-violating-3rd-amendment-with-snooping-tactics/10133

NSA Violating 3rd Amendment with Snooping Tactics

Posted by Tyler S. Storey / January 3, 2014     

At Uncle Sam’s, we’ve extensively covered the federal government’s attack on our Constitution and Bill of Rights.  They have taken shots at nearly every one of our rights in the last ten years, but there are still a few rights that we assume are safe for now.  The Third Amendment, for example is one that we don’t think much about in modern America.

    No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

All of the other amendments have been reexamined and interpreted for the 21st century world, taking into account advents such as the internet and much improved fire arms.  On the other hand the Third Amendment seems frozen in time, untouched by modernity.  But a new idea may change the perception of the Third Amendment.

A New Idea About The Third Amendment

Jacob Appelbaum, a top security expert, says that the NSA might very well be violating the Third Amendment — digitally.

Appelbaum was behind an expose in Spiegel, this week, on the NSA’s systemic offensive programs to commandeer computers and computer systems, phone connections and phone systems, and communications networks of all types.

Jacob Appelbaum shows how the NSA has already taken over our computers and phones by physically intercepting laptop shipments and installing bugware.  They then ship the laptop on to the consumer themselves after first installing special hardware that can overcome any privacy attempt, including “air gaps” (i.e. keeping a computer unplugged from the Internet).  Appelbaum also notes that spyware can suck up a lot of system resources on a computer or smartphone.

Appelbaum goes as far as saying this practice is the digital equivalent of soldiers being stationed in our homes without our permission and against our will.

The Comparison

The National Security Agency says that they are in the midst of a cyberwar.  That in itself is unlike anything considered during previous centuries.  In any war there are soldiers that do the fighting.  So, it stands to reason that in cyber warfare the spying devices, physical devices, and internet spyware, are the soldiers, so to speak.  These are the NSA’s cyber soldiers in their global cyber war.

In Colonial America, quartering meant that Americans had:

    To house British soldiers, who could come and go as they pleased
    To give freely their resources to British armies
    No right to expect privacy in their own homes

Today, NSA spying means that modern Americans have:

    No say in when the military presence comes or goes from our computers
    No say in the resources the NSA’s spying uses up.  (They can use a lot of the resources and space on your devices)
    No reasonable expectation of privacy, even in the most private moments in the most private places

The people who were forced to tolerate British rule in Colonial America had their homes invaded by soldiers, and lost any and all semblance of privacy.  Today our cyber homes, where we keep our most important personal information, have been invaded and our privacy has been completely lost.  Our forefathers’ homes were no longer theirs and our computers and phones are no longer ours.  That is what the Third Amendment was created to protect and that is what the NSA is violating.