[Cryptography] A different twist on the constitutionality of cryptography

Henry Baker hbaker1 at pipeline.com
Thu Dec 24 07:29:48 EST 2015

At 06:30 PM 12/23/2015, Phillip Hallam-Baker wrote:
>I think there might be an argument to be made that cryptography is protected under the bill of rights under the fourth amendment as well as the first.
>In numerous cases the court has found that a search is legal because a party did not have a reasonable expectation of privacy.
>The assumption being that if you don't act to make something private then it is public.
>That argument presumes that there are steps that a person could have taken to protect their privacy and chose not to use.
>Ergo, if they are denied the right to protect their privacy with encryption they are denied their right to protect themselves against unlawful searches.

Bingo!  That's called "Catch 22", and Catch-22 is as firmly embedded in American culture today as the Constitution itself.


I personally think that the Second Amendment and the Fifth Amendment support the right to confidentiality, but you have to first understand the broader principles that these Amendments were trying to address rather than appeal to the particular language of those Amendments.

(Physical) armor has traditionally been considered a (defensive) *weapon*.  But unlike guns, it's hard to work up much passion for or against armor; you won't see headlines where someone mows down 30 people with his *armor*.

The last time I've seen people get worked up over armor was the 1997 bank robbery in Los Angeles where police handguns were useless against the fully-armored pair of bank robbers.  After that incident, some legislators tried to restrict non-police access to body armor.  I seem to recall that there may still be *export restrictions* on body armor today.


If the Second Amendment protects the right to offensive *weapons*, which can be actively used to *kill people*, then certainly the Second Amendment protects the right to *defensive* armor, which merely protects the wearer against someone else's Second Amendment weapon.  In fact, as a matter of public policy, it would be far preferable that everyone should wear body armor, rather than carry guns.

The Second Amendment has been used to allow citizens to protect themselves against criminals; surely the Second Amendment would allow people to protect themselves against criminal attacks on their identities, bank accounts, private papers, etc., using *encryption*.

Congress is loathe to allow businesses and individuals to respond to hackers by "hacking back" -- even when the source of the active hacker might be known.  But once again, it would be far preferable to enable as strong encryption as possible so that "hacking back" won't be necessary.

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