[Cryptography] USG v. Apple, Apple Motion to Vacate Decrypt Order

Jerry Leichter leichter at lrw.com
Fri Feb 26 16:47:53 EST 2016


> Point taken.  But if encryption software can be Governed as a Weapon
> for trade purposes, for example Export Licensing, why wouldn’t it
> qualify for ”safe harbour” under the 2nd Amendment?
First off, just because something is covered by the same regulations as weapons for trade purposes doesn't make it a weapon.

But more importantly, the 2nd Amendment refers to "the right to bear arms".  What are "arms"?  Given the ambiguous context with its references to militias, most scholars today believe (and the courts have more or less held - this has never been fully pinned down) that "arms" are "the kinds of things that would have been considered appropriate arms for a militia member in the mid- to late-18th century", when the Amendment was written.  So tanks, to use an obvious example, are simply not covered.  Actually, machine guns are (probably - there are arguments and the Supreme Court has never directly addressed the question) aren't  either.  While cannon were around at the time, they are probably not covered because they would not have been the arms of an individual militia man.

Under this definition, cryptography is simply not in the same universe.

                                                        -- Jerry



More information about the cryptography mailing list