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A Right to Keep and Bear Cryptography? | | | Introduction | |
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< | The Heller Court (hereinafter: "Heller") held that the Second Amendment "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding". | >
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The adoption of the individual right theory has broaden the reach of the Second Amendment ( Heller and McDonald). By holding that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" ( Heller), stun guns were brought under the Second Amendment (2A)
( Caetano). | | | | |
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< | This paper examines whether cryptography software is a digital age bearable arm protected under the Second Amendment. | >
> | This paper's purpose is to assess the argument for a 2A right to cryptography, and is structured as follows: (1) present how a 2A right to cryptography could be inferred from the text and purpose of the 2A, (2) discuss the key objections and counter arguments, and (3) mention advantages which could arise from this line of reasoning.
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< | "Keep and bear arms" inquiry
The crux of the argument hinges on the "keep and bear arms" inquiry. | >
> | Keep and bear cryptography | | | | |
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> | | | | Heller stated that "The 18th-century meaning (of "Arms", O.B) is no different from the meaning today" and quoted the definition of arms from two 18th century dictionaries: "weapons of offence, or armour of defence", "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another". Heller explained that "keep (arms)" is to have weapons. "Bear (arms)" was interpreted as having a "meaning that refers to carrying for a particular purpose — confrontation." According to Heller, the natural meaning of the term is ‘wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’’’ | |
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< | Cryptography as a protected arm
This language in Heller could be interpreted to define "arms" as instruments that are used, offensively or defensively, in a conflict or combat with another (Rice, p.48). Cryptography, the argument follows, is a defensive instrument used in conflict with another. Drawing on a distinction found in case law regarding knives, a distinction between utilitarian tools and tools designed for conflict, cryptography was allegedly designed for and "is only useful" in conflict with another (Rice, p.48). The centrality of cryptography to conflict is evident by the fact that cryptography was considered an "arm" by the U.S. government and as a result "lived", for many years, on the "munitions list" (Rice, p.48-49). Beyond the textual analysis, the Second Amendment purposes, reconcilable with Heller, as self-defense and the insurrectionist theory, supports the conclusion that cryptography is an arm (Rice, p.51-72). | >
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Accordingly, cryptography, the argument follows, is a defensive instrument, used in and designed for, conflict with another ( Rice, p.48, Russell, McGregor). | | | | |
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< | The key objections to the argument | >
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Advocating nowadays for a 2A protection for defensive arms seems unfounded. However, while armor of defense was considered an arm in 18th century dictionaries, slower technological progress in defensive arms in comparison with offensive arms, had resulted in a 2A jurisprudence solely focused on offensive arms. A bearable armor which can withstand the power of the bullet was only introduced in 1965 with the creation of Kevlar ( Swank p.391).
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< | Heller did not hold that purely defensive means equate with Arms | >
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Furthermore, 2A purposes, reconcilable with Heller, as self-defense and the insurrectionist theory, supports the conclusion that cryptography is an arm (Rice, p.51-72). The right to bear arms includes the right to defend yourself against all forms of unlawful violence, criminal, tyranny or foreign invaders ( Lund, p.1373). Cryptography is an armor in the virtual world against criminals, tyranny and foreign nations.
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< | The argument is based upon Heller's discussion of the meaning of the term "arms", yet the parts in this discussion in which arms are defined also as armor are, arguably, not part of Heller's holding. In Davis, the West Virginia District Court faced the claim that a bulletproof vest was a protected arm, and held that "Heller did not hold that 'armour of defence' ... equates with "Arms" under the Second Amendment". The reasoning was that the historical reference materials were only relevant to the issues in Heller, collective versus individual right, and were discussed simply to show that the term "arms" was not understood as limited to military weapons. The Davis Court also remarked that the Heller Court's "frequent use of the word 'weapon' in its historical analysis suggests that the Court construed 'Arms' as instruments used forcibly or affirmatively during a confrontation – and not, as ... 'a passive means of self-defense'". | >
> | Key objections and counter-arguments | | | | |
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< | Overcoming the defensive character seems possible by adding an offensive layer, for example - "right to bear Denial of Service attacks". However, such an offensive layer entails greater risks in comparison to cryptography and would less likely prevail under the "dangerous and unusual" limitation. This raises the question whether insisting on an offensive characteristic would be a sensible policy in the digital age. Moreover, the court might still separate the offensive and defensive layers of the tool. | >
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First objection - The 2A does not protect purely defensive means (Rice, p.50). Although several courts have assumed without deciding that body armor is an arm (Rice, p.50), In Davis, the W.Virginia District Court decided to the contrary holding that "Heller did not hold that 'armour of defence' ... equates with 'Arms' under the Second Amendment". The Davis-Court reasoned that Heller's historical reference materials' function was limited to the collective versus individual issue, and that frequent use of the word "weapon" in the historical analysis supports a construction that "arms" are used forcibly and as passive means of self-defense. Absent guidance from upper courts, the Davis-Court was skeptical that the Framer's had any such thing in mind and remarked that at best this is a novel reach.
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< | The intangibility objection | >
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As explained above, the lack of guidance may be a consequence of slower technological development in the sphere of defensive arms, and not due to the implausibility of such interpretation. Moreover, tying the defensive layer to an offensive layer, like a " right to bear Denial of Service attacks", enables to overcome this objection, but at the cost of creating additional problems, including the "dangerous and unusual" limitation.
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< | The objection lies in extending the concept of "arms" to include intangible things (Rice, p.49). A counter argument offered was that "in the digital age, 'arms' can be no more limited to analog technology than can ... 'speech' ... or 'searches' ..." (Rice, p.49). However, this counter argument is expansive. Indeed, encryption was discussed in the First Amendment context. For instance, the Ninth Circuit ruled in Bernstein that encryption software is essentially code and code is speech. Nevertheless, the leap from encryption to "arms" seems to require another step from "speech", i.e. the activation of the code from which the encryption is comprised. This added step makes the argument less direct and weaker to defend in terms of simplicity. In the Fourth Amendment context, cryptography also raises unsettled issues. Encrypted data could be regarded as a locked box in which one has a reasonable expectation of privacy (Raviv, p.612). Yet, others "argue that the Fourth Amendment regulates government access to communications, not the cognitive understanding of communications already obtained" (id). Reading the term "arms" into the digital age, invites us to analogize the term to a digital age concept, for instance encryption software. Analogical reasoning of digital age phenomena has attracted criticism (Ganais Court, p.28-40; McAllister). Suffice to claim that analogizing encryption software to defense armor could be criticized as misapplied, because it is, for the sake of argument, actually a language not a shield. Therefore, reading the term "arms" in light of the digital age does not end the intangibility complication as the intangible characteristics complicate the requisite analogy to "arms" and make it more susceptible to manipulation. | >
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Second objection - Extending the concept of "arms" to include intangible things (Rice, p.49). A counter argument that was offered was that "in the digital age, 'arms' can be no more limited to analog technology than can ... 'speech' ... or 'searches' ..." (Rice, p.49-50). Yet, this argument is simplistic and thus raises the following concerns: first, analogizing "arms" to digital age concepts is susceptible to criticism regarding the adequacy of the analogy ( Ganais, p.28-40); second, unlike the First Amendment protection afforded to encryption, because encryption software is code and code is speech ( Bernstein), the 2A requires a further leap in the form of "activating" the code-speech, thus complicating the theoretical argument.
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< | Cryptography as more commonly and immediately protecting property rather than the physical person | >
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The intangibility objection faces the following counter-arguments: first, there is no escape from tackling the hard questions the digital age brings; second, analogizing encryption to a "bearable virtual armor" which protects against both criminals and tyranny is powerful and relatively straightforward; third, as cyborgization becomes widespread the analogy grows stronger because the "virtual shield" directly protects life and limb and not just property. Even today, cyber-attacks to turn off pacemakers and crash cars are far from science fiction.
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< | It is plausible to assume a court would be more inclined to embrace cryptography as arms if it functions as means of self-defense of life and limb and not just property (McGregor). Nevertheless, and even if it is true that cryptography is more commonly protecting property, as the digital age progress, we witness and probably will witness cyber-attacks that directly cause bodily harm, for instance turning off pacemakers, crashing cars and more. | >
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Moreover, if the in Fourth Amendment context, courts would view cryptography a safe, rather than secret language
( Raviv, p.612), it could strengthen the armor analogy.
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< | Conclusion | >
> | What benefits would such a right have when cryptography already enjoys a strong First Amendment protection? | | | | |
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< | The road to a Second Amendment right to cryptography can be paved from Heller's language and is in need in the virtual world we live in. | >
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Beyond providing an additional line of constitutional defense and a powerful analogy, A 2A approach to cryptography better highlights the right to buy/sell the activated-code-arm (armor) (Russell), and thus extends beyond protecting the right to express and be exposed to the underlying code-speech. Being able to purchase protected arms is considered core to the 2A, and under lower courts' standard of review, devised after Heller, burdening core 2A conduct should withstand strict scrutiny (Russell; Rice, p.75, 83). " Backdoor" legislation could be considered as burdening core 2A conduct because: (1) it imposes a ban on an entire class of arms, i.e. backdoorless cryptography (Rice p.83) and (2) it would harm the arm-(armor)-cryptography effectiveness to provide self-defense in the home (Rice, p.86).
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> | Conclusion | | | | |
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< | You have not actually
explained why this is a good idea. That five justices will ever
agree that commercial cryptography is a weapon whose possession has
anything to do with militia or the security of a free state is
grotesquely implausible. No justices believe now, or have ever
believed in my lifetime, that the Constitution is a word game, and
that anything that can be shoehorned into the word "arms," or
"commerce," no matter how divorced from historical context or
intention, is turned thereby into the constitutional object
described. The judges most likely to be sympathetic to an expansive
reading of the Second Amendment guarantees are the least likely to
divorce current meaning from historical intention, which provides no
support for your proposed interpretation.
One has to presume, then, that this is an artifact from a completely
contextless, libertarian constitutional culture, in which any
reading, no matter how strained, upholds any anti-statist
conception, no matter how abrupt. Heller concerns a local statute
prohibiting all ownership of most firearm weapons, even when they
are never carried outside the home. The Court has subsequently
shown no enthusiasm for taking its actual logic into conflict with
other real-world forms of local firearms regulation, short of such
absolute prohibition. Even if the analogy between firearms and
encryption were believable, how could Heller provide any useful
analysis concerning encrypted communications technologies actually
in use?
In short, you owe us an explanation why the style of constitutional
argument here is valid, both with respect to the theory of
interpretation overall and with respect to your use of the one case
you deign to discuss, out of the many your interpretive approach (if
valid at all) must encounter.
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Applying the constitutional framework to the digital age is a difficult task, but marching the 2A to the digital world has merits and cryptography seems a well suited candidate for that.
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