I think the replacement argument breaks down because I don't expect the countries I'm aware of where homosexuality is punishable by death to have anything like

I think the replacement argument breaks down because I don't expect the countries I'm aware of where homosexuality is punishable by death to have anything like the protections for personal liberty that Arkansas does. I haven't put a lot of thought into it, but from a practical standpoint, my argument would be something along the lines of a similar sentiment to Mr. Schmidt: "If you're homosexual in a country where that's a death sentence, please keep your head down until you can get out. Learn how to encrypt everyting. Don't rely on any third-party providers that you can't trust. Don't hand the murderer your own noose." And that sucks, because it's brutally unfair, but "brutally unfair" is assumed when talking about nations where homosexuality is punishable by death. From a moral standpoint, my argument would be something along the lines of "Murder is a horrible evil and homosexuality is not. We should be able to reserve more tools legally to track down murderers than to pry into someone's personal sexual preferences, and I'm lucky to live in a country where (generally) things are seen that way, most of the time." We already do reserve more tools legally to investigate a criminal case; privacy can be encroached upon by existing common-law methods. The question of interest is really, are your water logs and Alexa conversations priest-and-spouse-like or best-friend-like? Possibly more importantly: how does the replacement argument map to practical action? If we decide that we don't want to allow collected logs to be subpoenaed for murder trials (or we decide logs should be legally banned from being collectible---that'll make a lot of personal-improvement projects illegal, but let's entertain it for a second), how will that help homosexuals in countries where it's punishable by the death penalty? Those countries will look at our worst-case-scenario reasoning, say "That's nice," and then go on to log citizen activities anyway. The "should we" argument has absolutely no bearing on the capability argument, and if we're going to bring other nations into the risk model, we have to talk capability.