Re: US: Domestic Encryption Protected by US Constitution?

[tcmay@got.net (Timothy C. May)]

At 3:26 AM 6/9/96, C Matthew Curtin wrote:

>Given that the US State Department classifies strong crypto as
>munitions, is it possible that any laws passed outlawing the use of
>strong crypto among US citizens could be declared unconsitutional, in
>violation of the second amendment?
>
>Are there any legal precedents that apply here? Is the question purely
>academic (i.e., no such laws exist, no such bills are in the works, or
>none have been tried)? Does anyone know of any laws on the books that
>might be relevant to my question?


I recall that this general issue was discussed several times on the
"Cyberia-l" mailing list, a list consisting mostly of law professors,
lawyers, law students, and a bunch of Cypherpunks. (I left that list
several months back.)

Some points:

1. There are currently no laws restricting crypto use in the U.S., save for
some special circumstances (e.g., sending code over the ham radio band).
There being no laws, no courts have been asked to rule on such laws.

(I don't mean to sound confusing and circular here. The point is that the
boundaries of a law get shaped when the law is tested. Inasmuch as there
have been no laws about domestic use of crypto, we have little guidance as
to how the courts will frame arguments should such a law ever be passed.)

2. Most advocates for a continued right to use strong crypto have used the
First Amendment centrally. That is, "encrypted speech is still speech." Any
demand that speech conform to government standards would run into the basic
point that Congress is not to make such laws.

I believe this approach is the strongest one. Even if there are some limits
on speech (a la the infamous "falsely shouting 'Fire!' in a crowded
theater" example), this sort of limit does not limit the _form_ of speech.

(Quibblers may point out other such limits, even some on _form_. For
example, speech at 95 dB is OK, but "speech" at a jet-engine level of 135
dB is not. I won't get into such quibbles here.)

Casting a pro-crypto argument in terms of the Second Amendment ("encrypted
speech is a weapon") opens the door to all kinds of potential arguments for
restricting access to crypto. Think of all the various limits on firearms
ownership and use: certain calibers and types are restricted, the shapes of
firearms are controlled, special taxes are often required, waiting periods
for purchase, no ownership by convicted felons, no possession on or near
schoolgrounds, bullet types are controlled, limits on magazine capacity, no
possession of biological weapons, etc. etc. etc.

I don't think we want crypto controlled by the Bureau of Alcohol, Tobacco,
and Firearms, do we?

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Licensed Ontologist         | black markets, collapse of governments.
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