Sunday, June 9, 2013

“Cyber arms” and the Second Amendment

It started as a flippant Sunday-morning-at-the-coffee-shop tweet while I was awaiting caffeinated goodness- I tweeted:

“The Second Amendment should apply to cyber arms, for the same reasons it protects guns.”

But as I reflect on it, I realize that this raises interesting questions (even if they are just thought exercises- for now).

Amendment II states:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”


(By the way- if you ever doubted the significance of commas, this Amendment should remove all doubt- even as we argue their meaning in this case).

I have no desire to get into the gun control debates- but the Second doesn’t mention guns, it says “Arms”.  Note that “Arms” is not specifically defined, allowing for currently accepted definitions to be applied- even if (to the best of my knowledge) it has only applied to firearms up to this point in time.  The interpretation of the Second Amendment is certainly not alone in its need for clarification or interpretation in light of the changing state of “weaponization” of software- the Computer Fraud and Abuse Act (CFAA) is more desperately in need of overhaul.

It seems to me, as a non-lawyer and barstool constitutionalist, that the US government's restrictions on exports of crypto and other security technologies, combined with the recent news that

“Six U.S. Air Force cyber capabilities designated "weapons"'”

makes this a legitimate issue.  As with any tool or weapon, actual usage (and intent) will determine legality- but this could be an angle to combat those who wish to outlaw “hacking tools”.  The issue of what constitutes a “hacking tool” has always been tricky, especially since a web browser and a telnet client are sufficient to compromise hundreds of thousands of systems on the Internet.  I’m sure a strong case can be made against some crimeware kits as hacking tools- but few tools are purely evil (see Back Orifice for example, arguably a better admin tool in its day than what was commercially available).

Again I present you with more questions than answers, but now you have something to ponder while the Snowden/NSA story unfolds (and refolds, and unfolds into a Möbius strip or whatever it is now).