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Re: US: Domestic Encryption Protected by US Constitution?

   Date: Sat, 8 Jun 1996 22:36:53 -0700
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   From: [email protected] (Timothy C. May)
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   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?

   [...]

   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.)

IANACLP (Const. Law Prof.), but there is a fundamental difference in
First Amendment analysis between content-related restrictions and "time,
place and manner"-related restrictions.  Laws that prevent me from
shouting over a bullhorn at 3am are an example of the latter; they
operate in a manner neutral to the content of the speech and such
regulations are not subject to as strict scrutiny as content-related
restrictions (such as obscenity laws).  

The distinction between content and time/place/manner restrictions is
important.  Whether domestic use of cryptography may be regulated by the
Government may very well turn on whether the Court decides that the
encrypted version of my protected speech is itself protected content or
just a manner of expressing the underlying unencrypted content.  [For
example, Judge Patel recently found that source code was speech for
First Amendment purposes in Bernstein v. US Dept. of State, which
allowed Bernstein's constitutional challenge to the ITAR to proceed.]

A moot court panel on the constitutionality of possible domestic
cryptography restrictions was one of the headline events at CFP '96.  I
would strongly encourage those interested to check out:

	http://swissnet.ai.mit.edu/~switz/cfp96/plenary-court.html

which has pointers to all the background briefs and analysis as well as
RealAudio recordings of the oral argument held at CFP.

					--bal