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	<title>Comments on: The Third Amendment and the War on Terror</title>
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	<link>http://www.concurringopinions.com/archives/2009/08/the-third-amendment-and-the-war-on-terror.html</link>
	<description>The Law, the Universe, and Everything</description>
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		<title>By: Weekly Web Watch 08/24/09 – 08/30/09 &#171; EXECUTIVE WATCH</title>
		<link>http://www.concurringopinions.com/archives/2009/08/the-third-amendment-and-the-war-on-terror.html/comment-page-1#comment-65250</link>
		<dc:creator>Weekly Web Watch 08/24/09 – 08/30/09 &#171; EXECUTIVE WATCH</dc:creator>
		<pubDate>Mon, 31 Aug 2009 18:29:01 +0000</pubDate>
		<guid isPermaLink="false">http://www.concurringopinions.com/?p=19647#comment-65250</guid>
		<description>[...] Probably a good series to keep up with.  A related article is offered by Gerard Magliocca, who wonders what the Third Amendment has to say about war [...]</description>
		<content:encoded><![CDATA[<p>[...] Probably a good series to keep up with.  A related article is offered by Gerard Magliocca, who wonders what the Third Amendment has to say about war [...]</p>
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		<title>By: AnonymousLawProf</title>
		<link>http://www.concurringopinions.com/archives/2009/08/the-third-amendment-and-the-war-on-terror.html/comment-page-1#comment-65247</link>
		<dc:creator>AnonymousLawProf</dc:creator>
		<pubDate>Mon, 31 Aug 2009 16:07:17 +0000</pubDate>
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		<description>Potential law review article topic:  &quot;The Third Amendment: Implications for the War on Poverty and the War on Drugs.&quot;</description>
		<content:encoded><![CDATA[<p>Potential law review article topic:  &#8220;The Third Amendment: Implications for the War on Poverty and the War on Drugs.&#8221;</p>
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		<title>By: Gerard Magliocca</title>
		<link>http://www.concurringopinions.com/archives/2009/08/the-third-amendment-and-the-war-on-terror.html/comment-page-1#comment-65242</link>
		<dc:creator>Gerard Magliocca</dc:creator>
		<pubDate>Mon, 31 Aug 2009 11:59:40 +0000</pubDate>
		<guid isPermaLink="false">http://www.concurringopinions.com/?p=19647#comment-65242</guid>
		<description>A.J.,

Bingham read the Amendment as an absolute bar on quartering in peacetime but not in wartime.  I don&#039;t think there is any case law on this, though a look at the original understanding of the Amendment (and the complaints about the practice in the Declaration of Independence) might be helpful.

Well, whenever you do a post about an exotic or dormant constitutional provision, that always should be qualified a little bit.  Though if somebody has to be known as &quot;The Third Amendment Guy,&quot; I guess it might as well be me.</description>
		<content:encoded><![CDATA[<p>A.J.,</p>
<p>Bingham read the Amendment as an absolute bar on quartering in peacetime but not in wartime.  I don&#8217;t think there is any case law on this, though a look at the original understanding of the Amendment (and the complaints about the practice in the Declaration of Independence) might be helpful.</p>
<p>Well, whenever you do a post about an exotic or dormant constitutional provision, that always should be qualified a little bit.  Though if somebody has to be known as &#8220;The Third Amendment Guy,&#8221; I guess it might as well be me.</p>
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		<title>By: A.J. Sutter</title>
		<link>http://www.concurringopinions.com/archives/2009/08/the-third-amendment-and-the-war-on-terror.html/comment-page-1#comment-65240</link>
		<dc:creator>A.J. Sutter</dc:creator>
		<pubDate>Mon, 31 Aug 2009 05:02:25 +0000</pubDate>
		<guid isPermaLink="false">http://www.concurringopinions.com/?p=19647#comment-65240</guid>
		<description>I don&#039;t think you need to apologize for this being partly in jest, for fun or as an ego trip at all -- you raise a really interesting point. 

There&#039;s another textual ambiguity, though: does the clause &quot;but in a manner to be prescribed by law” apply only &quot;in time of war,&quot; or does it apply to peacetime quartering, too? I.e., is “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, ... but in a manner to be prescribed by law” a legitimate reading? Or is consent in peacetime an absolute requirement? Douglas, J. seems to have read it as the latter in &lt;i&gt;Griswold&lt;/i&gt; (&quot;The Third Amendment, in its prohibition against the quartering of soldiers &#039;in any house&#039; in time of peace without the consent of the owner, is another facet of that privacy&quot;), but this is dicta; and none of the concurring opinions so much as mentions the Third Amendment. Is there other precedent that supports Douglas, J.&#039;s reading, or subsequent case law that&#039;s solidified it?</description>
		<content:encoded><![CDATA[<p>I don&#8217;t think you need to apologize for this being partly in jest, for fun or as an ego trip at all &#8212; you raise a really interesting point. </p>
<p>There&#8217;s another textual ambiguity, though: does the clause &#8220;but in a manner to be prescribed by law” apply only &#8220;in time of war,&#8221; or does it apply to peacetime quartering, too? I.e., is “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, &#8230; but in a manner to be prescribed by law” a legitimate reading? Or is consent in peacetime an absolute requirement? Douglas, J. seems to have read it as the latter in <i>Griswold</i> (&#8220;The Third Amendment, in its prohibition against the quartering of soldiers &#8216;in any house&#8217; in time of peace without the consent of the owner, is another facet of that privacy&#8221;), but this is dicta; and none of the concurring opinions so much as mentions the Third Amendment. Is there other precedent that supports Douglas, J.&#8217;s reading, or subsequent case law that&#8217;s solidified it?</p>
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		<title>By: Steven M. Bellovin</title>
		<link>http://www.concurringopinions.com/archives/2009/08/the-third-amendment-and-the-war-on-terror.html/comment-page-1#comment-65239</link>
		<dc:creator>Steven M. Bellovin</dc:creator>
		<pubDate>Mon, 31 Aug 2009 02:19:54 +0000</pubDate>
		<guid isPermaLink="false">http://www.concurringopinions.com/?p=19647#comment-65239</guid>
		<description>During the so-called &quot;Crypto Wars&quot; of the 1990s, when export of cryptographic software was restricted by the government, there was a proposal by the administration for a so-called &quot;key escrow&quot; system.  Omitting the technical details, the point of the scheme was that under certain circumstances the (U.S.) government would be able to read encrypted data, but no one else would be able to.  The legal standard under which this could be done was never specified, despite repeated requests; the only statement was that it would only be done &quot;lawfully&quot;.  Speculation was that this was to leave room for, say, FISA orders or purely non-U.S. intercepts, rather than probable cause or the stricter standards required for wiretaps under the ECPA.

The assertion was that use of escrowed encryption would never be made mandatory; many people disbelieved this, because there were few (if any) other incentives to adopt it.  There was speculation on some cryptographic mailing lists that this might run afoul of the 3rd Amendment -- being forced to deploy an aid to wiretapping of your own communications, to aid in surveillance -- but I never saw any serious legal analysis, as opposed to amateur theorizing by (generally radical libertarian) cryptographers.

In any event, your point -- that Congress can perhaps do this, but not the executive branch -- bears on that issue.  The cryptography export rules are a creation of two regulatory regimes, the International Trafficking in Arms rules and the Export Administration Rules; while these are (I assume) based on statutes, to my knowledge the definition of covered cryptographic schemes (and there are still such, despite the drastic loosening of the rules around 2000) are regulatory creations, not statutory.</description>
		<content:encoded><![CDATA[<p>During the so-called &#8220;Crypto Wars&#8221; of the 1990s, when export of cryptographic software was restricted by the government, there was a proposal by the administration for a so-called &#8220;key escrow&#8221; system.  Omitting the technical details, the point of the scheme was that under certain circumstances the (U.S.) government would be able to read encrypted data, but no one else would be able to.  The legal standard under which this could be done was never specified, despite repeated requests; the only statement was that it would only be done &#8220;lawfully&#8221;.  Speculation was that this was to leave room for, say, FISA orders or purely non-U.S. intercepts, rather than probable cause or the stricter standards required for wiretaps under the ECPA.</p>
<p>The assertion was that use of escrowed encryption would never be made mandatory; many people disbelieved this, because there were few (if any) other incentives to adopt it.  There was speculation on some cryptographic mailing lists that this might run afoul of the 3rd Amendment &#8212; being forced to deploy an aid to wiretapping of your own communications, to aid in surveillance &#8212; but I never saw any serious legal analysis, as opposed to amateur theorizing by (generally radical libertarian) cryptographers.</p>
<p>In any event, your point &#8212; that Congress can perhaps do this, but not the executive branch &#8212; bears on that issue.  The cryptography export rules are a creation of two regulatory regimes, the International Trafficking in Arms rules and the Export Administration Rules; while these are (I assume) based on statutes, to my knowledge the definition of covered cryptographic schemes (and there are still such, despite the drastic loosening of the rules around 2000) are regulatory creations, not statutory.</p>
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