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Untrimmed title: The Use of Encrypted, Coded and Secret Communications is an “Ancient Liberty” Protected by the United States Constitution


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    Heh. I’m not a lawyer, but this looks like a nice and very thorough piece of legal research. A claim has been raised in the current encryption debates that, in effect, individuals never had any secrets that the law couldn’t find out, prior to microcomputers. Which is pretty much completely untrue, as the article elucidates nicely.

    As a larger point, most of these allegedly traditional capabilities simply did not exist before computerized records. Discovering what agencies might have records of interest to an investigation was a manual process involving a great deal of snail mail. What law enforcement has grown accustomed to does not necessarily have anything to do with a historical notion of what they could do. I hold the view that neither current investigative capabilities nor traditional ones should really be a consideration in how things should be, but the law doesn’t work that way, so having the historical context well-documented is important.

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      I’m not a lawyer and not American, but could the “Right to bear arms” protect encryption? Could it cover firewalls, viruses, honeypots, cracking, breaking and entering? Or is it more specific, restricted to just firearms or even specifically just firearms for defence/offence?

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        That wouldn’t be without precedent, since crypto export controls are modeled after weapons export laws too.

        Politically though, many of the more liberal crypto activists are opposed to guns, and would prefer the 2nd amendment just disappeared (or applied exclusively to 1776 era weaponry). The guns and crypto argument is more popular with libertarians who like both.

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          Right. And I wouldn’t expect it to be a viable strategy; gun control law today is pretty explicit about how civilians can’t have weaponry that’s thought of as equivalent to what law enforcement can have.

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            I’d certainly be willing to be educated about how that statement is incorrect. For the record.

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              So possibly, if the 2nd amendment disappeared, there could be an argument then for removing the ability for civilians to use the same encryption algorithms that law enforcement has access to?

              (not sure I completely understand the points being made in this thread, so forgive me if this question is off by miles)

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                I guess I was more trying to say that, given the way gun law and policy has played out to date, trying to tie the right to use cryptography to that same ideology or body of law would, even in the best case, result in unacceptable compromises. Because the public already has figured out a general sense of what they consider acceptable in that context.

                I wasn’t trying to guess what would work or not as a legal strategy, I’m definitely not a lawyer.

                It feels like maybe it’s a thought that needs to be more fully baked before it’s worth saying, honestly. :)

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            Link now 404s; going from http://vjolt.org/archives/older-volumes/ to volume 2 issue 1, we see:

            1. The Use of Encrypted Coded, and Secret Communications is an Ancient Liberty Protected by the United States Constitution [html] [Adobe .pdf format]
              By John A. Fraser III