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Imagine if Congress passed an encrypted law...
by Decius at 10:57 am EST, Dec 29, 2013

Imagine if Congress passed an encrypted law. Everyone could see that a bill had been passed, and the President had signed it into law, but the text was unintelligible - a bunch of random characters. There are a few people who have access to the decryption key, and know what the law says. The President knows, as do judges on the Foreign Intelligence Surveillance Court, but their proceedings are secret.

Members of Congress were given access to the plaintext, but only AFTER they passed the bill into law. Some members of Congress have never been given access to the plaintext, and its not clear how many members of Congress have actually read it.

The member of Congress who sponsored the bill has told a federal judge that when he voted for it, he hadn't seen the plaintext and he was under the impression that the plaintext said something different from what it actually says. As a result, several commentators have accused that member of Congress of failing in his duty to read the plaintext when it was made available to him.

A young person who works in the government got access to the plaintext, and released it to news media. Now everybody knows what the law says. Some hail that young person as a hero. Others are angry at him for revealing the plaintext, and point out that he has also revealed a large amount of other information, unrelated to this encrypted law, and some of that information undermines U.S. strategic interests.

Should the Supreme Court uphold this law?

A civil liberties group asked the Supreme Court to overturn the law, and they refused, without explanation.

Two lower courts have noted that the law was written in such a way that ordinary citizens aren't allowed to make arguments in court about the law. One of the judges wrote the following:

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have gotten access to the plaintext of this law but for the unauthorized disclosures by Edward Snowden. Congress did not intend that ordinary people would ever learn what this law says. And the statutory scheme also makes clear that Congress intended to preclude suits by ordinary people even if they discovered the true meaning of the law. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets - including the text of encrypted laws - could frustrate Congress's intent.

This is the situation in which we find ourselves.

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