[Cryptography] 2nd Amendment Case for the Right to Bear Crypto

[Xander Sherry]

On Wed, May 11, 2016 at 3:30 PM, Henry Baker <hbaker1 at pipeline.com> wrote:


>

<snip>


> The Second Amendment Case for the Right to Bear Crypto
>
> Written by Susan McGregor
>
> May 11, 2016 // 05:00 AM EST
>
> On November 9, 1994, an American software engineer named Philip Zimmermann
> was detained by customs agents in Dulles International Airport as he
> returned from a speaking engagement in Europe.
>
> His luggage was searched and he was interrogated at length regarding his
> possible illegal export of "dangerous munitions."
>
> Though Zimmermann was carrying no guns, bombs, or chemical agents, he was
> carrying one item considered a weapon in the eyes of the US government: the
> strong cryptographic software of his own making known as "Pretty Good
> Privacy," or PGP.
>
> While today it may seem surprising that software like PGP was ever
> considered a weapon, the US government has long viewed strong
> crypto--typically any encryption mechanism that cannot be bypassed
> efficiently--as a dangerous technology in civilian hands.
>
> Legally, in fact, the right of individuals to strong cryptographic
> technology has never been affirmed, even as privacy and surveillance
> concerns have prompted companies like Google, Apple and, more recently,
> WhatsApp and WordPress, to encrypt their devices and platforms by default.
>
> Thanks to the "Crypto Wars" of the 1990s, legal scholars have debated the
> ways in which cryptographic research and technology might qualify for
> constitutional protection.  Typically, however, these reflections have
> focused on interpretations of the First Amendment and the Fifth Amendment:
> the First, through the reasoning that code is speech, and the Fifth for its
> particular protection of the "liberty" to pursue one's chosen profession.
>
>
> http://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=2264&context=gsulr
>
> Yet the federal government's own decision to regard encryption technology
> as a weapon seems to suggest another constitutional lens: the Second
> Amendment, via the "right to bear arms."
>
> <snip>

I believe it is a mischaracterization to to try to equate crypto with a
firearm.  As muntions go, crypto is *not* like a firearm.

The definition of munition is exceptionally broad, ranging from the weapons
used to execute war, to anything that may be used to sustain and maintain
waging war.  Under this broad definition, crypto is indeed arguably a
munition.   So, arguably, is oil.  And food.  And water. However, there is
is definite line between weapons like firearms, or artillery shells, or
nuclear weapons and crypto. The former are useful when employed to actively
attack and harm an enemy.  A stun gun, as was an example in the article is
also used in this way.  Crypto is not. Crypto is designed to be used to
protect *against* harm from an enemy, more like body armor, or an armored
car.  In the software world, it would be reasonable, possibly, to compare
an exploit to a weapon like a firearm.  Or more of a stretch, a DDoS
vector, perhaps.

To argue for 2nd Amendment protections for crypto, however, is to buy into
the argument that it is indeed a weapon that is designed and intended to be
most effectively used for harm (even in defense) and that simply is not the
case.  The additional confusion that would be caused by accepting that
position and advocating for the rights of crypto-the-weapon might well do
more harm than good.


Best regards,

-Xander Sherry
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://www.metzdowd.com/pipermail/cryptography/attachments/20160511/e3b03c50/attachment.html>