> Trying to say that it's either one or the other is silly. It's both.
I'm not trying to say that it's one or the other. I'm trying to say that there is no part of it that isn't speech. There is not a part which is a tool and a distinct part which is speech. The whole of it is speech. All you're saying is that it's possible to use pure speech as a tool. But what of it?
You can't win by talking about balancing because encryption software is meta. You can use it to distribute it. If people who are breaking no law have the right to be able to communicate without government surveillance then the government would have to violate that right universally to enforce any rule restricting the distribution of software, because distributing software over a secure channel is indistinguishable from any other communication of the same size. It's hard to imagine anything that could justify that level of intrusion, and certainly not anything that has been proposed as a countervailing interest in this context.
I'm not trying to say that it's one or the other. I'm trying to say that there is no part of it that isn't speech. There is not a part which is a tool and a distinct part which is speech. The whole of it is speech. All you're saying is that it's possible to use pure speech as a tool. But what of it?
You can't win by talking about balancing because encryption software is meta. You can use it to distribute it. If people who are breaking no law have the right to be able to communicate without government surveillance then the government would have to violate that right universally to enforce any rule restricting the distribution of software, because distributing software over a secure channel is indistinguishable from any other communication of the same size. It's hard to imagine anything that could justify that level of intrusion, and certainly not anything that has been proposed as a countervailing interest in this context.