(Moderator, please feel free to rule this out of order, if it is.) [8] Second, and more importantly, the government's argument, distilled to its essence, suggests that even one drop of "direct functionality" overwhelms any constitutional protecions that expression might otherwise enjoy. This cannot be so.(16) ---------------- (16) If it were, we would have expected the Supreme Court to start and end its analysis of David Paul O'Brien's burning of his draft card with an inquiry into whether he was kept warm by the ensuing flames. [ ... ] Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb. The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption's bounty. Viewed from this perspective, the government's efforts to retard progress in cryptography may implicate the Fourth Amendment, as well as the right to speak anonymously, [...], the right against compelled speech, [...], and the right to informational privacy [...].
