A Right to Keep and Bear Cryptography?

-- By OrBelkin - 21 Mar 2017

Introduction

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".

This paper examines whether cryptography software is a digital age bearable arm protected under the Second Amendment.

"Keep and bear arms" inquiry

The crux of the argument hinges on the "keep and bear arms" inquiry.

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.’’’

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).

The key objections to the argument

Heller did not hold that purely defensive means equate with Arms

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'".

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.

The intangibility objection

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.

Cryptography as more commonly and immediately protecting property rather than the physical person

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.

Conclusion

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.