14

Stumbled across an interesting comment in regards to the recent events about TorProject and a public library in Lebanon, New Hampshire, U. S. of A.:

http://www.dslreports.com/forum/r30291606-So-let-me-get-this-right

The Committee for State Security (Komitet gosudarstvennoy bezopasnosti/ ) has no issues with encouraging freedom fighters from using a service that is illegal in their countries, but sends an "advisory letter" to anyone in the United States that uses it where it is legal. Shady.

The government has already classified encryption technology as a weapons system. Wouldn't this mean that use of encryption technology by US citizens is protected under the 2nd Amendment? (This isn't a serious argument, but it does make you wonder)

I still remember when the Department of Homeland Security got its name. I laughed my ass off. My buddy who was a Russian linguist for the military laughed even harder because it DIRECTLY translates to KGB. The soviets had Committees for everything instead of departments, and they used "the state" instead of "the homeland" in colloquial conversation.

Goldir

(emphasis mine)

Indeed, it's been well known in the technical communities that crypto has long been classified as munition by the US government. Bernstein v. United States. http://export.cr.yp.to/

Doesn't it indeed make it protected under the 2nd Amendment?

10

Not all weapons are protected by the Second Amendment. There is a "dangerous and unusual weapons" exclusionary clause established by the Supreme Court in District of Columbia v. Heller, which excludes pretty much anything that's incredibly dangerous (obviously we wouldn't want our people to have the right to keep bombs in their house) or not considered a normal weapon (encryption/cryptography would probably fall under this).

One case currently being considered under this exclusion is the stun gun, which is going to the Supreme Court to determine whether it qualifies as an unusual weapon and whether it is protected by the Second Amendment.

  • 1
    Why would encryption not be a normal weapon if it's so popular and used by so many Americans everywhere on a daily basis? – cnst Sep 16 '15 at 6:10
  • That's for people to argue with the Supreme Court. There is no case that explicitly protects or doesn't protect encryption, but it would likely not be considered protected by any local laws until the Supreme Court said it was. I'm simply pointing out the false assumption of just because something is a weapon that it's protected by the Second Amendment, because that's not true. – animuson Sep 16 '15 at 6:18
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    Interestingly, though, you do have the right to publish the source code for cyptography under the First Amendment: Bernstein v. US Department of Justice (Not by the Supreme Court, but the Ninth Circuit Court of Appeals) – animuson Sep 16 '15 at 6:26
  • You can keep some kinds of bombs in your home, just not certain types of bombs or self-propelled bombs (whether the archaic Panzerfaust or the shoulder-mounted heat-seeking SAM7). – forest Feb 22 '18 at 7:56
6

When understanding jurisprudence and laws that implicate the second amendment I generally find it helpful to reference the old United States v. Miller case. Essentially, the Supreme Court decided to read the second amendment as prohibiting infringements on keeping or bearing arms with some reasonable relation to the preservation or efficiency of a militia. So, for example, at the time a short-barrelled shotgun was not considered a useful military weapon and therefore not covered by the second amendment. (It would be fascinating to see the analysis today, when not only the standing military but even police routinely use short-barreled weapons.)

I could see the argument today that cryptographic technology does have a direct bearing on the preservation and efficiency of a militia, and therefore laws restricting its possession by U.S. citizens would be unconstitutional under the second amendment.

  • The Miller case is somewhat obsolete, isn't it? DC vs. Heller considerably broadened the second amendment right to keep and bear arms in the meanwhile. – phoog Nov 25 '15 at 6:07
  • @phoog - AFAIK Miller still stands. Heller (as I recall; I should re-read it) could be seen as broadening the right to also include the purpose of self-defense, however short-barrelled shotguns, even though well-suited to self-defense, are still NFA items! Would love to read any analysis that suggests Miller is no longer law though. – feetwet Nov 25 '15 at 6:55
  • I would also be interested to read any analyses discussing the applicability of encryption to self defense. – phoog Nov 25 '15 at 7:02
4

As discussed in the answer to another question, Is crypto legal in a weapon-free zone?, just because something is listed as a munition doesn't make it a weapon.

The definition of munition includes "weapons and ammunition" but not exclusively so.

The International Traffic in Arms Regulations (ITAR) defines what can and cannot be exported without a special license. The inclusion of cryptographic equipment and technology is related to regulations regarding the exporting of that technology.

There is no 2nd Amendment protection of exporting arms and the 2nd amendment does not apply.

There are other components regulated by ITAR, including a prohibition on the furnishing of training to a foreign person. This has been seen to mean that it is illegal to provide firearms-related training to a foreign person.

The prohibition on cryptographic software, training about cryptographic software and training for firearms is an issue that implicates the 1st amendment.

The National Rifle Association is challenging such regulations, as they relate to firearms information, under 1st amendment grounds. The Electronic Frontier Foundation has already successfully, so far, challenged ITAR on 1st amendment grounds as it relates to cryptography.

The bottom line is that the definition of cryptographic equipment and technology as a munition by ITAR does not make it a weapon.

ITAR regulates munitions. Munitions is a set that includes weapons and other items. One of those other items is cryptographic technology.

  • 1
    Your answer depends somewhat on the definition of munition, but you don't actually cite an authoritative definition of the term. Is there one? – phoog Nov 25 '15 at 6:01

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