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A piece of encryption software is clearly both. It is speech. If you wanted to you could even go find the source code and translate it into english in such a w
by harryh 11y ago
A piece of encryption software is clearly both.
It is speech. If you wanted to you could even go find the source code and translate it into english in such a way that a relatively competent programmer could turn it back into code ("If the first bit in the byte is 1 then do .... other wise do ....").
But it's clearly also a tool. I've never read the source code to the software I use to encrypt my hard drive. It's unlikely that I ever will. I just care that it does the job I want it to.
Trying to say that it's either one or the other is silly. It's both.
But just because it's speech doesn't mean that the government might not have an interest in regulating it. The first amendment is not absolute. I can imagine a great many prima facie arguments supporting the idea of regulating encryption software. The fact that code is speech is not, in and of itself, a defense against any of them.
As with most cases of constitutional law, it comes down to weighing competing interests. Failing to acknowledge these varying interests fails to acknowledge the actual question at hand.
- AnthonyMouse 11y ago> Trying to say that it's either one or the other is silly. It's both. I'm not trying to say that it's one or the other. I'm trying to say that there is no part of it that isn't speech. There is not a part which is a tool and a distinct part which is speech. The whole of it is speech. All you're saying is that it's possible to use pure speech as a tool. But what of it? You can't win by talking about balancing because encryption software is meta. You can use it to distribute it. If people who are breaking no law have the right to be able to communicate without government surveillance then the government would have to violate that right universally to enforce any rule restricting the distribution of software, because distributing software over a secure channel is indistinguishable from any other communication of the same size. It's hard to imagine anything that could justify that level of intrusion, and certainly not anything that has been proposed as a countervailing interest in this context.