Correct me if I'm mistaken, but case law has held that the First Amendment does not provide a right to privacy. It provides a right to self-controlled conducting of ones business. It provides the right to communicate with others whatever subject one desires (x09 F9?). But it doesn't state that the government can't know these things -- only that it cannot act on many of them. Which, sounds familiar to metadata / automated search positions expressed in Congressional testimony?
The 2nd - 6th on the other hand, watered down though they may be by subsequent court opinions, do directly deal on the relationship between things that an individual may possess which the government would seek to take from them for its own ends.
To me, the second set strikes far closer to the intent of privacy. Privacy is not some passive manner of communication. Privacy is fundamentally a weapon whose very existence challenges and bounds the desires of the state. Because privacy is fundamentally unknown.
Let's not pretend we're talking about encrypting just "the good messages". We're talking about encrypting child pornography, chemical formulas and processes for explosives, copywritten media, white/black/hispanic/asian supremacist propaganda, firearm schemics, computer viruses, and explicit pictures of ex-relationship partners.
The state has a reasonable interest in wanting some of this suppressed. But you have to make an all-or-nothing choice on whether it should be able to do that... or not.
This isn't about expression: it's about how we as individuals and citizens relate to our government and it to us.
Encryption may be necessary for privacy, but it's an aspect of manner of communication.
And time, place, and manner restrictions on expression are limited by the First Amendment (case law gives them slightly less protection than content-based restrictions, intermediate rather than strict scrutiny.)
And encryption restrictions that permit it for certain uses and not for you others are, arguably, content-based restrictions.
The content-based encryption argument is interesting, but I doubt we'll see any "certain use" laws. The problem/benefit of encryption is that if it's well designed then you have no idea what its contents are - mooting any content based restrictions.
We'll see how it goes though. I doubt the courts will be thrilled to do anything that circumscribes their own power.
The 2nd - 6th on the other hand, watered down though they may be by subsequent court opinions, do directly deal on the relationship between things that an individual may possess which the government would seek to take from them for its own ends.
To me, the second set strikes far closer to the intent of privacy. Privacy is not some passive manner of communication. Privacy is fundamentally a weapon whose very existence challenges and bounds the desires of the state. Because privacy is fundamentally unknown.
Let's not pretend we're talking about encrypting just "the good messages". We're talking about encrypting child pornography, chemical formulas and processes for explosives, copywritten media, white/black/hispanic/asian supremacist propaganda, firearm schemics, computer viruses, and explicit pictures of ex-relationship partners.
The state has a reasonable interest in wanting some of this suppressed. But you have to make an all-or-nothing choice on whether it should be able to do that... or not.
This isn't about expression: it's about how we as individuals and citizens relate to our government and it to us.