[Cryptography] Statement from Attorney General William P. Barr on Introduction of Lawful Access Bill in Senate

Jon Callas jon at callas.org
Mon Jun 29 13:23:43 EDT 2020

> On Jun 26, 2020, at 3:00 PM, Henry Baker <hbaker1 at pipeline.com> wrote:

> I've never understood why 'encryption' doesn't fall
> under the *Second Amendment*.
> After all, encryption used to be considered the same
> as 'arms' and 'armor', and was regulated as such.

Yes, but that was for the purposes of export. Also, it was 23+ years ago -- encryption was moved from ITAR in 1997. Even if it were true then, it isn't now.

> Unfortunately, most of the people I talk to regarding
> encryption hate the 2nd Amendment so much that they
> won't even consider it.
> Which I think is a mistake, because if you look at
> the current composition of the U.S. Supreme Court, I
> think that they might well agree that encryption
> is a form of 'arms', and is thereby Constitutionally
> protected.

Encryption has never been regulated internally for almost all purposes. (Ham radio can't use encryption, but that's not only just for radio, but internationally it was. Even here, there are complexities that I can't describe both succinctly and accurately.)

However, even back in the day, my then-government affairs people said it was best not to go there, because we might not like what we'd get -- for example, we might get total unrestricted encryption, along with mandatory key escrow.

The present argument that they are making is that encryption should not be "warrant proof" and that would go away, too. They can issue a warrant to look for firearms and get them when they've been used in a crime. I don't see what would prevent the present attack on second amendment grounds.

Popping the stack back, though, encryption-as-armament was something that took place at border crossings, and was a designation that many other non-armament things had and even to this day have. Like GPS.

There was an old paper at I think UVA law school about how encryption should be considered an "ancient right" -- something that is so old in our understanding that it never had to be stated. I think that has far more legs than the second amendment. In any event, though, they are not banning encryption, they want to be able to get to information with a warrant. That's their viewpoint. It's not the encryption, it's the information, and they are arguing that the technology of encryption should not prevent a search or seizure when authorized by a warrant. For that, even, fifth amendment arguments are better and are even making traction. We just won one of those a week ago.


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