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Checking the Government with Anti-Severability Provisions

The federal government has been arguing that the terror attacks in Paris and San Bernardino require that it be able to circumvent encryption of messages, something they have sought for a long time.  A cynic might argue that they see their opportunity and are seizing it.

But let’s assume that they actually need the access to encrypted messages to combat terrorism.  How can the government be monitored so that the acquired information is not used for other purposes, such as non-terror law enforcement or disclosure for political purposes?

Here is one idea.  Congress should pass a law that prohibits the use of this information for any purpose other than the prevention of terrorism.  The sanctions for a violation should be both criminal and civil.  Moreover, an Inspector General should be given the tools to uncover any such wrongdoing. 

It might be thought that the executive branch might simply choose not to prosecute the individuals involved, as it has have done so many times in the past.  But I believe there is a way to prevent such behavior.  Congress should require the executive to bring prosecutions for violations of this unauthorized disclosure law whenever it has probable cause to believe a violation has occurred.  While the executive might argue that it is unconstitutional to take away its prosecutorial discretion, I have argued in the past this is untrue.

But the executive might argue that it believes it is unconstitutional to take away its prosecutorial discretion and therefore choose not to enforce the law requiring prosecutions.  To prevent this from occurring, Congress should make the encryption bypass authority nonseverable from the prosecution requirement.  That is, Congress should include an anti-severability provision that states that if the prosecution requirement is not enforced based on constitutional grounds, the encryption bypass authority should also be unenforceable.

There is nothing problematic about such a provision. Many laws contain provisions that are not severable – if one provision is found to be unconstitutional, then another provision is unenforceable – because Congress either implies or states it would not want the one provision enforced without the other.  My guess is that the executive would be reluctant to lose its encryption bypass authority and therefore would bring the requisite prosecutions.

I believe that such non-severability provisions would be a useful check against the executive.  I hope to blog about them in the future.

Reader Discussion

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on December 14, 2015 at 13:05:27 pm

Nice thought - hope it works.

In the meantime, if I were the Chief Honcho, I would avoid this by simply taking over the Internet via *net neutrality" or some such ploy while thereby making the internet a "public utility." Having done this, I could then enforce the same "affirmative" requirement of public utilities to assist in law enforcement efforts and require internet types to provide me with encryption keys.

Oops, I forgot, the Obamaites are already trying this!!!

Nope, I think I prefer Professor Rappaport's proposals!!!

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gabe
on December 14, 2015 at 15:59:43 pm

On special prosecutors: So a law would "require" a special prosecutor to bring a case whenever it finds probable cause to believe a violation has occurred. Great. But if the prosecutor is unwilling, he can bring the prosecution verrrrry slowly. Or he can bring it exceedingly promptly, before he has prepared his case, thus lose in court and insulate the defendant from prosecution by any other admiration due to prohibitions on double jeopardy.

And what consequence should befall a prosecutor who forthrightly declines to prosecute? Should there be a separate law compelling other prosecutors to prosecute the first one for failing to prosecute? And how recursive should this process get?

I think it would make more sense to compel government to fund a private party to sue on an aggrieved party's behalf. Let the motivation come from the private party. If no private party is sufficiently aggrieved to sue -- or if government pays off all the private parties -- then that should be the end of it.

On nonseverability: I think you're overlooking the sequence of events. Let's say we adopt the law with a nonseverability clause. First, government spies on everyone for all kinds of nefarious reasons. This triggers the application of mandatory prosecution. The Pres. sez he refuses to prosecute, based on Executive Privilege. This triggers the recision of the whole spying law. But the Prez already has the data he was looking for. You can't un-ring the bell.

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nobody.really
on December 14, 2015 at 18:44:18 pm

You are quite right: Probable cause? said the prosecutor! "Well, I didn't SEE him do it - so I have no probable cause."

Also,with respect to your 2nd paragraph, why not provide for a private right to sue such as is currently done with environmental litigation. Include it in the law.

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gabe
on December 15, 2015 at 00:35:58 am

Or they say the anti-severability clause is unconstitutional and just ignore it. Then claim state secrets over any information they get. Oh and throw in that you don't have standing because you cant prove that they were listening to your encrypted communication. When was the last time a sitting federal prosecutor was actually personally held liable for their wrongful behavior? The last one that they tried it with was Richard Convertino in 2006, but the 6th U.S. Circuit Court of Appeals said Convertino can’t be sued because he had immunity. How can we possibility trust giving more power to the government when the power is abused and those that do so are not brought to justice?

Much better to NEVER EVER let the government have control of encryption for all kinds of reasons. Do not trust any encryption that the government has monkeyed with, only trust open source encryption where everyone can see their are no backdoors. Once the government creates a backdoor, hackers WILL use it for their own purposes. There is no such things as a security flaw that only the government can use.

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Devin Watkins
on December 15, 2015 at 00:41:24 am

The government and the elites ensconced in the "Deep State" who control the government have no need to worry about the "law." In America,today,by and large when it comes to the things that effect the power of the elites the laws are very fluid. In essence we don't live in a nation of laws but a nation of men. A good example would be that the Social Security number,when first conceived,"was not to be used for identification purposes." This is one of the reasons why it was reluctantly approved by Conservatives and the courts back in the 1930s. Now,and for the last 30 years,Social Security numbers have been used for nothing else but "identification purposes." They just waited about 50 years and then just "changed" the law.

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libertarian jerry

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.