I’m not an American, and I’m definitely not an American constitutional law scholar, but from having a read of the text of the amendment it does appear to primarily be referring to public speech? I’m likely misinterpreting this, but nothing about the First Amendment appears to me about communicating in private and ensuring the privacy of that communication.
Speech has been broadly interpreted to include many "outputs" from human action/work/communication. It extends beyond literal speech/talking. For example, decorating a cake is considered speech, and a baker can refuse to decorate a cake for customers they don't like, because the government cannot compel speech.
I've seen arguments that the encryption algorithm itself is speech and should be protected, similar to the cake decoration.
In addition to protections on speech, the Constitution also has protections on privacy (albeit not literal - that protection has been interpreted by courts over the years - the Griswold case being the most recent/important interpretation of that right [google: "Griswold penumbra"], and now Dobbs could see some of that protection walked back).
> I've seen arguments that the encryption algorithm itself is speech and should be protected
Yeah, that's an interesting distinction for sure. I mean, this has gone back to PGP and the encryption wars in the 90s where it was illegal to export an electronic version of PGP from the US under... ITAR, I believe (secure encryption was considered a munition and thus export-restricted?). And it was worked around by publishing the source code in a book, which could be exported just fine. Where it gets a bit more complicated is publication-restriction vs. use-restriction though; I'm sure I could readily find bomb plans on and possess the plans freely, but the moment I follow the directions in those plans I am committing a criminal act (in Canada at least it'd be "possession of a prohibited device").
The Griswold and Dobbs thing is a really unfortunate situation :(.
Up here in Canada, we've got a kind of interesting situation that really favours E2E and I wish I had a citation handy... basically, law enforcement cannot search your cellphone for evidence without a warrant, as expected, and also can't get a wiretap without a warrant. The situation that arose, though, was that one of the major telecommunication companies was keeping short-term SMS logs for ostensibly system debugging and law enforcement realized they could request those logs warrant-free. Because it was voluntary third-party disclosure, no one was "compelled" to disclose these logs and there was no protection in place for either party of the communication.
Yeah, Clinton-era restrictions classified certain encryption products as munitions.
That restriction lost in early appeals, but IIRC, it never made it to SCOTUS, as the tides changes and industry forced the government to relax the restriction somewhat (IIRC, some restrictions still apply, but not to what we'd consider "normal" encryption products).
Edit/Addition - also worth noting the target/subject of speech matters. Political speech is the most protected, with almost absolute protection.
And often missed by the general public - speech is protected only in the senes the government can't restrict it (without a very good reason), but that doesn't mean speech is free of consequences from the public.
> That restriction lost in early appeals, but IIRC, it never made it to SCOTUS, as the tides changes and industry forced the government to relax the restriction somewhat
The government was forced to relax the regulations when the Ninth Circuit found they were an unconstitutional restraint on speech.
All software has had first amendment protections since that ruling, and the only reason it never made it to the Supreme Court is because that ruling has never been appealed by the government.
Congress can make any laws it likes, and there’s existing unconstitutional restraints on software in the law today (like the DMCA anti-circumvention restrictions), but it has subsequently never attempted to enforce any restraints of writing or distributing software, and couldn’t without the permission of the Supreme Court.
I’m not trying to be rude, but I don’t understand how so many people on HN seem to be unfamiliar with this case. It’s arguably the most important legal decision in the history of writing software.
