Encryption and the Press Clause

Tags: 2010s Amendment I Apple Crypto Wars Crypto Wars I Crypto Wars II Journalism San Bernardino

Authors: Baranetsky, D Victoria

Published: 2017

URL: https://jipel.law.nyu.edu/wp-content/uploads/2017/04/NYU_JIPEL_Vol-6-No_2_1_Baranetsky_PressClause.pdf

Abstract: This law review article by D. Victoria Baranetsky argues that, through a historical understanding of the purpose of the Press Clause, the First Amendment protects encryption technology. The article begins by describing the Framers’ intent and purpose in the Press Clause, as well as the traditional interpretations and debates that have arisen surrounding its meaning, then goes on to describe how those interpretations may interact with and protect encryption. The article proposes that because encryption is ubiquitous in the dissemination of information, the Press Clause must support encryption as a channel of information and protect against state interference with encryption as a channel of speech and information.