The Second Amendment Case for the Right to Bear Crypto

On November 9, 1994, an American software engineer named Philip Zimmermann was detained by customs agents in Dulles International Airport as he returned from a speaking engagement in Europe. His luggage was searched and he was interrogated at length regarding his possible illegal export of "dangerous munitions." Though Zimmermann was carrying no guns, bombs, or chemical agents, he was carrying one item considered a weapon in the eyes of the US government: the strong cryptographic software of his own making known as "Pretty Good Privacy," or PGP. While today it may seem surprising that software like PGP was ever considered a weapon, the US government has long viewed strong crypto—typically any encryption mechanism that cannot be bypassed efficiently—as a dangerous technology in civilian hands.

Legally, in fact, the right of individuals to strong cryptographic technology has never been affirmed, even as privacy and surveillance concerns have prompted companies like Google, Apple and, more recently, WhatsApp and WordPress, to encrypt their devices and platforms by default. Yet the federal government's own decision to regard encryption technology as a weapon seems to suggest another constitutional lens: the Second Amendment, via the “right to bear arms.”