Re: Encryption and the 2nd Amendment

At 4:39 PM 1/20/96, Michael Froomkin wrote:
>IMHO the 2nd amendment argument is bunk. [I haven't seen the Wired
>article BTW, so this is just a general point.]

I haven't seen the "Wired" article either, as I no longer read it.

I agree with Michael that an association of crypto with arms is a long
reach, unsupported in anything I've seen in the Constitution or related
papers. Moreover, any successful link made could be disastrous.

After all, it is well-established--whether we like it or not--that the
government can regulate and control access to hydrogen bombs, bazookas,
nerve gases, grenades, fully-automatic weapons, and even various kinds of
rifles and handguns. I would hate to see crypto truly classified as an
armament (beyond what the ITARs say) and thus be subject to the same kinds
of regulations as above.

Be careful what you wish for, you might get it.

A much stronger claim can be made, I think, that crypto is a form of
language or speech, clearly protected by the First Amendment. Thus, writing
one's diary in an encrypted form (a common practice in colonial days,
interestingly) is a form of language one uses. Thus, "Congress shall make
no law..." about this speech or writing. That two people choose to converse
in ROT-13 or in RSA or in their own private code is not something the
government is authorized to interfere with.

Ikewiselay, itingwray inlay igpay atinlay islay otectedpray.

--Imtay Aymay

Boycott espionage-enabled 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,
Higher Power: 2^756839 - 1  | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

> I agree with Michael that an association of crypto with arms is a long
> reach, unsupported in anything I've seen in the Constitution or related
> papers. Moreover, any successful link made could be disastrous.
> 
> After all, it is well-established--whether we like it or not--that the

It is?  Not by precedent, as far as I know.  By statute, yes.  I'd like 
to see some cites on this - the only reasonable cite that I know of 
concerning the ability of the government is the one back in the 40's (I 
think) that concerned someone possessing an "illegal shotgun" - and, of 
course, the pseudo-famous case regarding whether or not a convicted felon 
filling out certain government forms is protected by the 5th amendment.

Michael, can you point me in the general direction here?

> government can regulate and control access to hydrogen bombs, bazookas,
> nerve gases, grenades, fully-automatic weapons, and even various kinds of
> rifles and handguns. I would hate to see crypto truly classified as an
> armament (beyond what the ITARs say) and thus be subject to the same kinds
> of regulations as above.

> A much stronger claim can be made, I think, that crypto is a form of
> language or speech, clearly protected by the First Amendment. Thus, writing
> one's diary in an encrypted form (a common practice in colonial days,
> interestingly) is a form of language one uses. Thus, "Congress shall make
> no law..." about this speech or writing. That two people choose to converse
> in ROT-13 or in RSA or in their own private code is not something the
> government is authorized to interfere with.

Not *that's* a novel argument, one I hadn't heard before!  If true, this 
could cover a very wide variety of circumstances.  If I send my wife 
email from work and encrypt it, then that's the same as if I sent her a 
note in Farsi.  Interesting implications here... I wonder if there are 
any cases where, for example, the government took people to court during 
WWII to prevent them from talking in German or Japanese over the phone, 
or in letters?

> Ikewiselay, itingwray inlay igpay atinlay islay otectedpray.

I know you probably did this by hand, but I think in the dim mists of 
time, someone posted a program (to net.sources, no less!) that converts 
text into pig latin.  Of course, such a thing is almost trivial to write
but it would be interesting .

On the other hand, compression isn't illegal, but crypto is.  What's the 
difference?  Both render text in a form that is unreadable to the casual 
observer, and both require some effort on the part of the observer to 
"decrypt".
--
Ed Carp, N7EKG    			Ed.Carp@linux.org, ecarp@netcom.com
					214/993-3935 voicemail/digital pager
					800/558-3408 SkyPager
Finger ecarp@netcom.com for PGP 2.5 public key		an88744@anon.penet.fi

"Past the wounds of childhood, past the fallen dreams and the broken families,
through the hurt and the loss and the agony only the night ever hears, is a
waiting soul.  Patient, permanent, abundant, it opens its infinite heart and
asks only one thing of you ... 'Remember who it is you really are.'"

                    -- "Losing Your Mind", Karen Alexander and Rick Boyes

> After all, it is well-established--whether we like it or not--that the
> government can regulate and control access to  [...]


       I *think* the only thing that's been affirmed, is that the feds 
can *tax*  weapons transfers.     I think the one particular case is 
called "Rock Island" or something like that. The defendant was 
*acquitted* of possessing an un-registered machine gun, because the 
authority to tax transfers of newly-manufactured machine guns, no longer 
exists. This is an over-simplifaction. Anyway, the point is, the 
defendant was acquitted right there in district court.

Tim, I don't think you'll be able to find anything in the Code of federal 
Regulations or the United States Statutes, which outlaws the manufacture 
or possession of a fission device in your basement.  I'm not even 
positive if it fits the legal definition of a "destructive device", whose 
*transfers*  are taxed.