Well, in this case the difference is between two statements:
* The state grants citizens the right to encrypt data
* The state cannot infringe upon the right of people to encrypt data.
These two statements have important differences. Philosophically, the difference is that in the positive rights model, government is the source of rights, and if the government did not exist, you would not have this right. In the negative rights model, the source of rights is man's natural free will, and the government's declaration of rights is an enumeration of an existing right he already had (and yes, I'm conflating negative and natural rights, I apologize, but the point is still true).
It seems pretty obvious that encryption is more accurately a negative right -- if you were the last human on earth, alone in the desert, you would of course have the right to encrypt a message you carve into a stone (who could stop you?).
This is in contrast to a positive right like "the right to housing". The "right to housing" is an entitlement that the government promises they are going to provide to all citizens. All citizens, even those who cannot afford or build one on their own, are given a home if they want one.
It is further clear when you look at what would happen if these two examples were reversed. If government grants the right to encrypt data, then what would happen if there was no government? Do you suddenly stop being able to do encryption? This would make no sense.
Similarly, if you were too weak or lacked the materials to build a house yourself (as the last man alive wandering the desert), nobody would naturally grant it to you. A house does not simply materialize through free will alone.
This suggests to me without a doubt that the right to encryption should be considered a negative right (and you should certainly believe this too). The only debate is whether the distinction matters in a practical sense -- this is where the libertarians will probably argue that it does, and I would certainly agree with them, but that argument is a lot more complex and subjective. In this case it's a little easier since the specifics/vagueries of this specific law leaves quite a bit to be desired over the obvious negative rights version of it.
The main difference is that with positive rights the government will defend your rights from others, while negative rights you are on your own to defend your rights from others. For example, if Google infringes someone's rights to free speech the government can intervene if it was a positive declaration, but with a negative declaration the government doesn't care since it only says that the government can't infringe on that right.
The problem is that positive rights vary WILDLY in practicality. For example, China has the positive right to protest ("citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration") -- this means that you are allowed to attend official, government approved protests, of course, and not generally allowed to have protests otherwise. You still have the right to protest -- just not the right to choose what and when and where to protest. See how it gets twisted easily?
"The government shall not pass any law that restricts the ability of the people to protest" is a much stronger and safer precedent.
To be honest though, the real cool part of negative rights is that you can ALSO have positive rights on top of them. They are not mutually exclusive! Take the following phrasing:
* The government may not pass any law that infringes on the right of the people to encrypt their data (this is now a constitutional amendment and nobody can change it without a huge supermajority)
* Also, private companies may not prevent users from uploading, downloading, sending, or using encrypted data, subject to the following restrictions... (this is now law but we will keep updating this)
You have a negative right that says "the government can't abridge this right". THEN you also have a positive right that protects consumers against the actions of private companies. This is the ideal formulation for rights, I think. Negative rights are a constitutional baseline that are hard to get rid of. Positive rights need to change rapidly to address the quickly evolving world. Thus positive rights are best handled by lawmaking, while negative rights are best given strong constitutional protections.
* The state grants citizens the right to encrypt data
* The state cannot infringe upon the right of people to encrypt data.
These two statements have important differences. Philosophically, the difference is that in the positive rights model, government is the source of rights, and if the government did not exist, you would not have this right. In the negative rights model, the source of rights is man's natural free will, and the government's declaration of rights is an enumeration of an existing right he already had (and yes, I'm conflating negative and natural rights, I apologize, but the point is still true).
It seems pretty obvious that encryption is more accurately a negative right -- if you were the last human on earth, alone in the desert, you would of course have the right to encrypt a message you carve into a stone (who could stop you?).
This is in contrast to a positive right like "the right to housing". The "right to housing" is an entitlement that the government promises they are going to provide to all citizens. All citizens, even those who cannot afford or build one on their own, are given a home if they want one.
It is further clear when you look at what would happen if these two examples were reversed. If government grants the right to encrypt data, then what would happen if there was no government? Do you suddenly stop being able to do encryption? This would make no sense.
Similarly, if you were too weak or lacked the materials to build a house yourself (as the last man alive wandering the desert), nobody would naturally grant it to you. A house does not simply materialize through free will alone.
This suggests to me without a doubt that the right to encryption should be considered a negative right (and you should certainly believe this too). The only debate is whether the distinction matters in a practical sense -- this is where the libertarians will probably argue that it does, and I would certainly agree with them, but that argument is a lot more complex and subjective. In this case it's a little easier since the specifics/vagueries of this specific law leaves quite a bit to be desired over the obvious negative rights version of it.