The government is continuing to misunderstand the import of the 4^th Amendment’s stricture regarding searches, the right of the people to be secure in their persons, houses, papers, and effects and especially Warrants…particularly describing the place to be searched, and the persons or things to be seized, and of the major purpose of our Constitution generally.

Even accepting things like Edward Snowden’s leaks and the NSA’s overbroad and non-particular descriptions of things for which to be “searched” in our cell phone metadata as being aberrations, the existence of the aberration demonstrates the fragility of government handling of that much searching capacity.

I wrote nearby about the FBI’s dangerous zeal in demanding that cell phone operating system software be made vulnerable to government-desired searches. Following is another demonstration of the government’s misunderstanding.

“This sort of encryption creates a virtual sanctuary for criminals who are very determined and smart,” warned Ron Hosko, the former head of the FBI’s criminal division….

So does the 2^nd Amendment’s right to keep and bear arms give criminals who are very determined and smart access to tools for supporting their efforts. So does the 1^st Amendment’s acknowledgment of a range of freedoms give criminals who are very determined and smart access to tools for supporting their efforts.

That’s a risk we members of our social compact have agreed to accept in order to have a government with the strength otherwise to protect and enforce those freedoms. We’ve done nothing to alter those terms of our compact—our Constitution—since then.

Our Constitution was written the way it was, in fact, to limit our government’s powers as far as we could and still leave it the necessary strength with which to effect those protections. The powers of our government are, by design, few and defined. Our Constitution was, in fact, written to restrain our government, and to carry out that restraint before our government could act, not to attempt to redress a situation after government has acted. This relationship between us compact members, us citizens, and our government, furthermore, is neither symmetrical nor reciprocal.

We restrain our government before the fact; it does not engage in prior restraint of us. Yet, this government demand for ready and broad, non-particular access to the contents of our communications—the contents of our private speech—through a third party and not through us is exactly that attempt by our government to priorly restrain us, if only through the chilling of our speech through government snooping with its implied threat of subsequent harassment. Think IRS. Think Federal whistleblower treatment.

This final thought:

“I don’t think the legislative branch or the judicial branch can sit idly by while destruction comes,” said Hosko….

Neither can We the People sit idly by while the destruction of our inalienable rights comes.

This time, as represented by the FBI.

The head of the Federal Bureau of Investigation urged Silicon Valley Thursday to reverse course on encrypting phone data, suggesting the pendulum on privacy issues “has swung too far” against the government in the wake of revelations by former National Security Agency contractor Edward Snowden.

No. It hasn’t swung far enough, as too many judges’ attitudes illustrate.

FBI Director James Comey added,

We also need a legislative and regulatory fix.

Again, no. We have too many laws on the books already; the government, including the FBI, aren’t capable of enforcing those existing. And this elides the premise that the government has made illegal and has outright criminalized too many things. Beyond that, we have far too many regulations already, every one of them written by Federal agencies and Cabinet departments that are only tenuously accountable to us citizens.

And

Mr. Comey’s speech [at the Brookings Institution] was another indication of how far apart the two sides remain. He denied they wanted a back door, saying that using a warrant to gather evidence is the equivalent of walking through the front door.

Say that’s true about the current government. There’s no guarantee any future administration would be as restrained with those “legislative and regulatory” fixes. Just look at the out of control regulation writing that’s already been going on for an example of how a tool, originally restrained in its use, gets more and more abusively used over time.

Moreover, beyond individual security and privacy, there’s this national security question, raised by the ACLU’s Christopher Soghoian:

…weakening the security of systems to enable law enforcement access also makes them far more vulnerable to compromise by foreign governments and hackers. If anything, we should be doing more to secure our data.