I wanted to have some fun comparing encryption to gun ownership at a Constitutional and policy level.

First, let us cover some similarities (I don’t see all these similarities as true, but are claims made against both by media/people. I am listing them because its interesting):

  • You are unable to export either, and can technically be persecuted for doing so (for encryption, this was relaxed in 2000, but still has some restrictions.)
  • Used for attacks.
  • Amendments back the usage of both: 2nd Amendment and 1st/4th Amendment (sometimes encryption gets the 5th).
  • Both are used as a rebellious tool against corrupt governments.
  • Both are used today.
  • regulation is being called for both.
  • Both are something a lay-person can’t just make, but instead can only use someone else’s creation of. Creators generally have a large capital investment (factory, degree in cryptography/math)
  • Both are necessary.

The Constitutional arguments for the right to gun ownership was clarified by the Supreme Court in 2008 by Columbia v. Heller, which re-interpreted the 2nd amendment to expand the rights of gun ownership for self-defense, not just militias. Even so, the SC also said that “common sense” regulation is justified, as no amendment guarantees unlimited rights.

For encryption, the 1st amendment is pretty obvious. I can spew a line of garbage that only the recipient can read. That is my right. I also have the 4th amendment, which says I have a right against unlawful seizure. It also helps to make sure everyone plays by the rules during a lawful seizure. The 5th has been (in my opinion, erroneous) used to prevent individuals from giving up passwords to unlock encrypted devices. Though, the 5th is leveraged solely through the 1st, as giving up a password is “compelling speech”. I disagree entirely with this argument, but I mentioned it above and it has been used in courts before.

To my knowledge and a couple searches, no such Supreme Court ruling has been made guaranteeing the right to use encryption.

Is there a fundamental difference between the two, though?

The biggest difference that can be seen immediately is in the purpose of the tool itself. Encryption’s original and most base purpose is to scramble communications to prevent anyone but the intended recipient from being able to read it. The original and most base purpose of the gun is to kill a human being.

We can also look at the differences of those who use it. Encryption is almost literally used everywhere, by almost every computer that has the processing to support it. The most obvious example is right now. Facebook uses it, to ensure no one at a coffee shop reads your private messages to other people, to make sure that same person doesn’t alter the page before it gets to you, to make sure your ISP can’t modify the page and insert ads. Its the basis of an computerized and networked world. Its also used for communicating secretly, by individuals who may want to break pretty much any law.

Guns are used to defend oneself against others, as a hobby or sport, and for murdering individuals the user doesn’t like.

A more apt and nefarious description: Encryption is a tool of the conspirator, the gun is a tool of the acting conspirator.

But, we must also concede that despite these differences, there are similarities of necessity that state we must regulate both.

While encryption is nice, it doesn’t mean you have the right to never turn over evidence from your computer about your activities. Law enforcement can compel you to decrypt your own messages if they have a court order to do so. Its not clear yet to what extent state actors can break encryption, or compel encryption makers or middlemen (Operating System makers, ISPs, Root Certificate Authorities) to intentionally weaken encryption for government wiretapping purposes.

While guns are great, their purpose necessarily leads to regulation. Children can’t have them, some amount of background checks are used, and they are banned in various public and private areas (planes, stadiums, schools, etc).

Without passing judgement on the efficacy or the downsides of the current or proposed regulations of both (which is a huuuge ocean to cross, but I want to keep this post shorter and to get to the point already), there is still that question from the beginning hanging over our (my) head:

Is there a fundamental difference between the two?

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This is as far as I have gotten. I am leaning towards there is no fundamental difference at a legal level. Both are merely tools, and their use by individuals doesn’t warrant a mark against the tool, both should be backed by rights to their use, while limited regulation of both is necessary. The weak argument I leaned away from was: even if encryption’s purpose is more “peaceful” and necessary for everyday activities than the gun, I could only find myself falling to ethical or utilitarian arguments for the expanded right of encryption (and fewer regulations of encryption) over a limited right/more regulations of the gun. This isn’t necessarily a bad thing as legal arguments don’t exclude ethical arguments, but it also shows my biases.

Since I found this topic interesting to think about, I’ll leave the question open for the reader to comment on, or to perhaps even answer. I don’t necessarily have an outcome I want (for that would be presumptuous), but I did try to explore for an argument I am biased with (can’t help who I am), and didn’t get to a satisfying conclusion.