Date: Sat, 8 Jun 1996 22:36:53 -0700 X-Sender: tcmay@mail.got.net Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" From: tcmay@got.net (Timothy C. May) Sender: owner-cypherpunks@toad.com Precedence: bulk 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