Maybe I missed part of the discussion, but IMHO y'all are
missing the forest for the trees.
The majority opinion seems to say that they recognise that
reasonable people (and legal opinion) can differ about whether
code is speech or is something more strictly "functional".
But in Section [C], entitled "Concluding Comments", in the
paragraph that begins with "Second, we note that ..", they
go to no small effort to state that they are in broad agree-
ment with the thesis that personal privacy is very much on
the defensive these days.
"[I]t is fair to say that never has our ability to
shield our affairs from prying eyes been at such
a low ebb."
They expand upon this point to bring the Fourth Amendment
into the discussion, and they conclude by stating that that
"[I]t is important to point out that Bernstein's
is a suit not merely concerning a small group of
scientists laboring in an esoteric field, but also
touches on the public interest broadly defined."
I am not a lawyer, but here they would seem to be informing
any subsequent review court that it would be unwise to focus
too narrowly on the arguably technical issue of whether code
is free speech or not. There was no clear precedent to guide
them on this point, and so they broadened their considerations
to encompass general public policy.
Who was it that made this point to Congress a couple of years
ago, that privacy is on the run, and that encryption serves to
reclaim a bit of it for the average Joe, and generally keep the
government out of people's business ? Was it Phil Karn ?
I am pleased that the review court took note of this view.
* * *
And, just out of curiosity, who appointed Judges Fletcher and
Bright ? I would like to see this in news reports, but I sup-
pose this would require some genuiine research work on the part
of reporters, and anyways it might remind people that certain
recent Presidents, and one in particular, spoke libertarianism
while implementing statism.
In any case, when I hear marketing types complaining about the
EU Data Privacy Directive, and how adoption of similar practices
in the American market would screw up marketing as American busi-
ness knows it, my response is: "Good".
Best,
Fred Baube
--
F.Baube(tm) * Milosevic: "perfect knowledge of the
G'town U. MSFS '88 * Serbs' irrational collective psychology"
[EMAIL PROTECTED] * -- http://www.janes.com/defence/
+358 (40) 737 6934 * features/kosovo/milosevic.html
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