[Cryptography] Cryptography, backdoors and the Second Amendment

Henry Baker hbaker1 at pipeline.com
Fri Oct 10 21:01:58 EDT 2014

At 01:53 PM 10/10/2014, grarpamp wrote:
>On Thu, Oct 9, 2014 at 7:36 PM, Alfie John <alfiej at fastmail.fm> wrote:
>> After reading Keybase cofounder Chris Coyne's response to the backdoor
>> nonsense, it got me thinking about cryptography and the Second Amendment:
>>   "A well regulated militia being necessary to the security of a free
>>   state, the right of the people to keep and bear arms shall not be infringed."
>> As the US State Department classifies cryptography as a munition,
>> shouldn't the use of cryptography be protected under the 2nd Amendment?

Traditionally, armor is considered "arms", so purely defensive arms are
obviously covered by the Second Amendment.

I've never heard of anyone dying of good armor (except perhaps dying of
heat stroke), but millions have died from bad armor.

I've never heard of anyone dying from good crypto, but millions have died
from bad crypto.

BTW, Jacob Appelbaum has referenced law professor Glenn Harlan Reynolds's
idea that the stationing of spyware within citizen's computers & routers
is a violation of the *Third* Amendment regarding troop quartering:


Should 3rd Amendment prevent government spying?

Glenn Harlan Reynolds 11:24 a.m. EDT July 22, 2013

Technological advancements could call for an update to the amendment that protects us in our homes.

* Troop quartering also violated the notion of the home as a castle.

* Now we have electronic troops in the form of software, gadgets, and sensors.

* It seems clear that our government feels entirely comfortable violating people's right of privacy.

So a couple of weeks ago, I wrote about a Third Amendment case from Nevada in which a family's home was literally seized and occupied by police seeking a vantage point over their neighbor's home.  That case falls pretty much within the literal language of the Constitution's Third Amendment, which provides: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

But that led to some further thoughts.  When the Framers drafted the Third Amendment, they had a specific evil in mind: The quartering of troops "upon" a population by the English crown.  As the term suggests, this wasn't just about getting a cheap place for soldiers to stay.  Forcing citizens to put up troops in their homes was expensive and the troops -- then drawn from the jails and gutters, for the most part -- were likely to rob, rape and assault members of the household at the least provocation.  Troop quartering was a way to punish a restive region that had been resisting the government.

But beyond that, troop quartering also violated one of the classic "rights of Englishmen," the notion of the home as a castle.  As the U.S. Court of Appeals for the Second Circuit said in one of the few Third Amendment cases ever to be heard, the Amendment was designed to assure a fundamental right of privacy.  If you think of it that way, what things does the government do that violate that privacy right today?

If the government places a surveillance device in your home, is that sufficiently like quartering troops there to trigger Third Amendment scrutiny?  What if it installs spyware on your computer or your cable modem?  What if it requires "smart meters" that allow moment-to-moment monitoring of your thermostat settings or toilet flushes?

The famous birth-control case of Griswold v. Connecticut invoked the Third Amendment, along with several others, with the Court asking, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?  The very idea is repulsive to the notions of privacy surrounding the marriage relationship."  If physically searching the bedroom is "repulsive," what about activating the camera on someone's laptop for remote viewing?  Or monitoring the "Skype sex" sessions of spouses who are apart?  How could that possibly be less repulsive?

These specific concerns weren't what the Framers had in mind.  In their day, to spy on a family in its own home, you'd have to put a soldier there.  But now we have electronic troops in the form of software, gadgets and sensors.  Maybe the law needs to take account of this.  We have updated our interpretations of the First Amendment to go beyond hand-operated letterpresses, the Second Amendment to go beyond flintlocks, and the rest of the Bill of Rights to account for technological change of all sorts.  Why not the Third Amendment, too?

In the wake of the various government-spying scandals that have broken this summer, it seems clear that our government feels entirely comfortable violating people's fundamental right of privacy, whether in their homes or out of it.  Big Brother wants the whole haystack of your data, in case it should later decide to look for a needle in there somewhere.  Should we invoke the Third Amendment to ensure that your home, at least, is safe?

Glenn Harlan Reynolds is professor of law at the University of Tennessee. He blogs at InstaPundit.com.

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