If necessary, criminals could even type in or scan one of the computer programs printed in the many books published on the subject. And even the SAFE bill, which is well-intentioned, fails to contain an assurance of judicial review of any agency decision to prevent publication due to alleged national security concerns, a key element required by the Constitution. SAFE also does not clearly protect scientists such as Professor Bernstein, but only protects those who seek to distribute mass market software already available abroad. This means that American scientists can no longer participate in the ongoing international development of this vital and important area of science. In addition, we believe that regulation of encryption software and technology violates the First Amendment because of what encryption does.
Encryption allows people to use electronic envelopes to protect their speech.
The Supreme Court has noted that a state could not regulate ink or paper without raising constitutional concerns. We believe that similarly the government cannot prevent Americans from using electronic envelopes or require them to use key-escrowed envelopes without violating their First Amendment rights. This is because such rules compel them to speak to the Government anytime they wish to speak to anyone else. Encrypted speech is still speech. The elimination of privacy creates a chilling effect on that speech which implicates the First Amendment.