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French Bill Carries 5-Year Jail Sentence For Company Refusals To Decrypt Data For Police (dailydot.com)
Patrick O'Neill writes: Employees of companies in France that refuse to decrypt data for police can go to prison for five years under new legislation from conservative legislators, Agence France-Presse reports. The punishment for refusing to hand over access to encrypted data is a five year jail sentence and $380,000 fine. Telecom companies would face their own penalties, including up to two years in jail. M. Pierre Lellouche, a French Republican, singled out American encryption in particular. "They deliberately use the argument of public freedoms to make money knowing full well that the encryption used to drug traffickers, to serious [criminals] and especially to terrorists. It is unacceptable that the state loses any control over encryption and, in fact, be the subject of manipulation by U.S. multinationals."
I would hope that corporations faced with these unreasonable demands simply close up shop in the country. Google CEO going to go to jail? Well, Google pulls out of France and has no presence. Good luck French people with your search queries. If a corporation caves to one country then it will just embolden then next country. Better to draw a line in the sand and tell them to fuck off.
Shh.
Companies should ensure all software sold to the French government have backdoors or have encryption weak enough to be useless, which uh would mean the French government wouldn't want to buy their software!?
The above is trying to illustrate a contradictory scenario that in many ways may happen if companies try to follow the French law. Sure in the case of phones and communication it is intended at non-government parties, but where does that line cross?
The other issue as we have recently seen is that enties of national interest will just use their own tools and the result will be a law that only hurts "law abiding" citizens.
Jumpstart the tartan drive.
If you accurately represented his opinion, it would indeed be shocking.
Since you didn't, it is called a "straw man."
Actually, while GP is being a bit hyperbolic, I think the argument would more accurately be called a "slippery slope" type, rather than a straw man. GP may overestimate how far Breyer is willing to go, but your post underestimates the radical shift in judicial philosophy that is occurring.
There is nothing at all fringe about the idea that European law is connected to American law; indeed, English Common Law was adopted from the start. The earliest legal document that gets cited in US law is the Magna Carta; look it up if you think that was an American document. ;)
And it is you who seemingly misunderstands the issue here. Yes, English Common Law was adopted because it was already in practice. The very definition of Common Law is that matters beyond the written Constitution are frequently resolved by citing relevant court precedent (which is often important, since the law never covers all cases explicitly).
The early US really had no choice here if they wanted to retain a Common Law system. Previously, the Colonies had been governed by English Common Law, and lawyers here had been trained in that system and would cite those cases as precedent (which were themselves often built on English cases). To simply erase all of that history after the US declared independence would be to put a huge amount of cases in legal "limbo" where judges could effectively rule whatever they wanted to with no governing precedent.
So, the citation of earlier English law was required to maintain continuity in the early US. And the very concept of Common Law allows citation of predecessors, whether native law or not. Thus, the Magna Carta may be one of the earliest legal documents that gets cited (and not as often as most legislators seem to think -- there are only one or two concepts there that still have direct import on modern law, and contrary to what you imply, that document is NOT directly binding on US law; it's mostly relevant in the precedents it has created). But English law derived some concepts in turn from medieval French law. And medieval French law in turn inherited concepts from ancient Roman law.
And there are still legal concepts dating back to Roman law which get cited in cases, if not actual documents.
The point is that these are all HISTORICAL citations from systems that are the DIRECT ANCESTORS of our own legal system. That's basically how Common Law works in finding previous precedent and concepts codified in previous rulings.
The reality is that the Constitution bans "cruel and unusual" punishment, which is and always was based on the current culture.
Yes, and the notion is traditionally based on COMMUNITY standards. This goes for a number of legal issues, such as the idea of pornography/obscenity, where we think of Justice Potter Stewart's classic line, "I know it when I see it."
In the case of pornography and "cruel punishment," standards do change, but in previous law the idea was to look at COMMUNITY standards, whether local or for the nation as a whole. Citation of other countries' ideas would generally be confined to historical precedents.
It is perfectly reasonable to look to what is considered "cruel" and "unusual" by our formal allies, especially those ones who share certain parts of common law with us.
I agree it's "perfectly reasonable." But it isn't standard practice in US law (or rather, it hasn't generally been, until it started in recent years). The much more common citation of Common Law in other countries would be to look at historical cases dating before the US. The other time courts would occasionally look to other nations would be to resolve a NOVEL issue for which precedent did not exist yet in the US.
That's an entirely different