The US has laws against snooping on the mail - so before encryption, it was illegal for the government to even try to snoop (search and seizure). The only reason this is even an issue now is that digital information is not being legally treated in the same way as physical information. If we had laws to prevent the government from ever opening your email, that would be a solution worse than encryption (laws are easier to break than elliptic curves), but it would achieve some of the same goals. However, you will never see the advocates of cleartext laws propose that trade - they don't want the same rules as we had in the 1800s, they want looser rules!

And they would be incorrect. End-to-end encryption existed long before journalism. Ciphers have been in use for a very long time. Romans used ciphers to encrypt messages.

That the medium of transmission of the message is different should make no difference.

What it boils down to is whether people are allowed to have private speech or not. Any argument that says I'm not permitted to write an electronic message to you in a way that only you can read is fundamentally equivalent to one that argues I cannot speak to you where someone else is unable to record.

I can't tell you which part of the U.S. Constitution pertains, but I'm fairly certain the Founding Fathers had a robust belief in the right to maintain a private life separate from a public life. Having zero separation between public and private was a more primitive state in ancient Athens, for example. One of the advances of Republican Democracy as a form of government was to say that a) there is a distinction, and b) the government should be restricted from interfering with private life, so long as your actions didn't damage someone else's freedom.

The Founding Fathers explicitly denounced legal mechanisms that could be used to encroach on things like a mother expressing her opinions to a child, or teaching them religion. The trade off for this freedom was to make it harder for the government to police. It was a trade off gladly accepted, because it was well and viscerally understood what the other side of that equation looks like.

We seem to have forgotten that.

I believe that, with respect to government, the separation of private and public life you’re referring to falls squarely under the 4th amendment.

The open question to me is how we can maintain this separation with respect to employers. The nature of employment as changed dramatically since the early days of the republic, and I don’t believe the Founding Fathers could have conceived of the type and size of employers we have today.

That employers have abused their power over employees to control their private lives is a matter of historical fact (see the Ford Sociological Department: https://jalopnik.com/when-henry-fords-benevolent-secret-poli...). Clearly, we need legal protections for workers to prevent these types of abuses of power.

And while that's true, adversaries have significantly more resources at their disposal now. So the "old" ways of phones, mail, and in person meetings are no longer secure.

> And the justices will point out that journalism predates end-to-end encryption

When do you think cryptography and end-to-end encryption specifically was invented? I think you're likely to be thousands of years out.

The same ones who are poised to strike off any gun regulations that don't date back to the Revolutionary War, presumably.

I don't think that's an effective counter argument. Sourcing journalism in the 21st century means living and working with 21st century technology. It's not reasonable or realistic to tell journalists to go back to using the mail if they don't like their communications being intercepted.

You may not find it reasonable, but you're responding to somebody reasoning it, an argument like this is actually pretty common at court. “it seems kinda crazy” is a losing argument.