Is encryption code speech? Earlier court rulings suggest that it is, legally, and therefore subject to First Amendment protections.
On October 22, the former general counsel of the FBI Jim Baker published a lengthy and astonishing piece called “Rethinking Encryption.” In that article, the conservative-leaning current director of national security and cybersecurity at the R Street Institute advised the Justice Department and law enforcement to “embrace reality and deal with it” when it comes to encrypted communications.
Running counter to the now decades-long on-again and off-again pursuit by the Justice Department and law enforcement for a backdoor that would allow access to encrypted communications, Baker wrote that encryption “is one of the few mechanisms that the United States and its allies can use to more effectively protect themselves from existential cybersecurity threats, particularly from China. This is true even though encryption will impose costs on society, especially victims of other types of crime.”
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