united-states munition cryptography second-amendment new-hampshire
Is the right to keep and bear crypto protected by the Second Amendment?
<p>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.:</p>
<p><a href="http://www.dslreports.com/forum/r30291606-So-let-me-get-this-right" rel="nofollow noreferrer">http://www.dslreports.com/forum/r30291606-So-let-me-get-this-right</a></p>
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<p>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 &quot;advisory letter&quot; to anyone in the United States that uses it where it is legal. Shady.</p>
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<p><strong>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?</strong> (This isn't a serious argument, but it does make you wonder)</p>
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<p>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 &quot;the state&quot; instead of &quot;the homeland&quot; in colloquial conversation.</p>
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<p>Goldir</p>
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<p><em>(emphasis mine)</em></p>
<p>Indeed, it's been well known in the technical communities that crypto has long been classified as <strong>munition</strong> by the US government.  <em>Bernstein v. United States.</em> <a href="http://export.cr.yp.to/" rel="nofollow noreferrer">http://export.cr.yp.to/</a></p>
<p>Doesn't it indeed make it protected under the 2nd Amendment?</p>

<p>Not all weapons are protected by the Second Amendment. There is a "dangerous and unusual weapons" exclusionary clause established by the Supreme Court in <a href="https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller">District of Columbia v. Heller</a>, 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).</p>

<p>One case currently being considered under this exclusion is the <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/11/are-stun-guns-protected-by-the-second-amendment/">stun gun</a>, 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.</p>

<p>When understanding jurisprudence and laws that implicate the second amendment I generally find it helpful to reference the old <em><a href="https://www.law.cornell.edu/supremecourt/text/307/174">United States v. Miller</a></em> case.  Essentially, the Supreme Court decided to read the second amendment as prohibiting infringements on keeping or bearing arms <em>with some reasonable relation to the preservation or efficiency of a militia</em>.  So, for example, at the time a short-barrelled shotgun was not considered a useful <em>military</em> 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.)</p>

<p>I could see the argument today that cryptographic technology <em>does</em> 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.</p>

<p>As discussed in the answer to another question, <a href="https://law.stackexchange.com/questions/3721/is-crypto-legal-in-a-weapon-free-zone">Is crypto legal in a weapon-free zone?</a>, just because something is listed as a munition doesn't make it a weapon.</p>

<p>The definition of munition includes "weapons and ammunition" but not exclusively so.</p>

<p><a href="http://www.ecfr.gov/cgi-bin/text-idx?SID=86008bdffd1fb2e79cc5df41a180750a&amp;node=22:1.0.1.13.58&amp;rgn=div5" rel="nofollow noreferrer">The International Traffic in Arms Regulations (ITAR)</a> 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.</p>

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

<p>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.</p>

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

<p>The <a href="https://www.nraila.org/articles/20150807/freedom-advocates-pro-gun-senators-unite-to-oppose-the-obama-administration-s-attempt-to-censor-information-about-firearms-technology" rel="nofollow noreferrer">National Rifle Association is challenging such regulations</a>, as they relate to firearms information, under 1st amendment grounds. The <a href="https://www.eff.org/cases/bernstein-v-us-dept-justice" rel="nofollow noreferrer">Electronic Frontier Foundation has already successfully</a>, so far, challenged ITAR on 1st amendment grounds as it relates to cryptography.</p>

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

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