Legally, in fact, the right of individuals to strong cryptographic technology has never been affirmed, even as privacy and surveillance concerns have prompted companies like Google, Apple and, more recently, WhatsApp and WordPress, to encrypt their devices and platforms by default.Thanks to the "Crypto Wars" of the 1990s, legal scholars have debated the ways in which cryptographic research and technology might qualify for constitutional protection. Typically, however, these reflections have focused on interpretations of the First Amendment and the Fifth Amendment: the First, through the reasoning that code is speech, and the Fifth for its particular protection of the "liberty" to pursue one's chosen profession.Yet the federal government's own decision to regard encryption technology as a weapon seems to suggest another constitutional lens: the Second Amendment, via the "right to bear arms."***In the United States, restrictions on non-governmental uses of cryptography go back to at least 1977, when a member of the National Security Agency sent a letter to the IEEE warning that some of the material to be presented at a Cornell cryptography conference might run afoul of weapons export regulations.
Legal proceedings over the right to encrypt have been largely inconclusive
Additional regulatory changes in the early 2000s further relaxed the export restrictions, making the use of PGP and other open-source software legal for individuals to transport and use. But legal proceedings over the right to encrypt have been largely inconclusive.For example, the three-year investigation of Zimmermann was eventually dropped, but without explanation. And while in 1999 researcher Daniel Bernstein secured a win against the Department of Justice in the 9th circuit, a series of legal technicalities accompanied by a big change in ITAR meant that the case was ultimately dismissed in 2003 without being decided.Meanwhile, "Software (including their cryptographic interfaces) capable of maintaining secrecy or confidentiality of information or information systems" remains on the ITAR Munitions List today—and the export of more sophisticated encryption software is still subject to both government oversight and a complex licensing process.
"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."
Unless online banking is suddenly outlawed, the "dangerous" uses of strong encryption are somewhat beside the point