Encryption is the process of coding and decoding information to ensure its privacy. The encryption of computer data may well be the most powerful tool peaceful individuals have to protect themselves against Big Brother. Predictably, Big Brother is eager to control it. The rationale, as expressed in A Report to the President of the United States (Sept. 16, 1999): "American history has been punctuated by periods in which the National government had to respond to sweeping social, economic and technological developments." Speaking of cyberspace as a "new tool", the government claims that technology raises new issues to which it must respond in new ways.
The issues are the same as they have always been. In 1785, a resolution authorized the secretary of the Department of Foreign Affairs to open and inspect any mail that related to the safety and interests of the United States. The ensuing 'inspections' caused prominent men, like George Washington, to complain of mail tampering. According to various historians, it led James Madison, Thomas Jefferson and James Monroe to write to each other in code - that is, they encrypted their letters – in order to preserve the privacy of their political discussion.
The need for Founding Fathers to encrypt the information they sent to each other is high irony. The intrusive post office against which they rebelled had been established specifically to provide a free flow of political opinion. In the 1770's, Sam Adams had urged the 13 colonies to create an independent postal system. The existing post office, established by the British, acted as a censor and barrier against the spread of rebellious sentiment. Dorothy Ganfield Fowler in her book Unmailable: Congress and the Post Office observed, "He [Adams] claimed the colonial post office was made use of for the purpose of stopping the 'Channels of publick Intelligence and so in Effect of aiding the measures of Tyranny.'" Thus, "'...the necessity of substituting another office in its Stead must be obvious.'
Alas, the more governments change, the more things stay the same. Soon, the Continental Congress itself wanted to declare some types of matter 'unmailable' because their content was deemed too dangerous. One of the first types of mail to become de facto unmailable was Anti-Federalist letters and periodicals. During the debates over ratifying the Constitution, the Anti-Federalists - who basically rejected a Constitution unless it had a Bill of Rights - simply could not circulate their material through the Federalist-controlled post office.
Yet, like Adams, many of those who founded the Post Office seemed to want communication to flow freely. The first official restrictions placed on 'mailability' were strictly utilitarian, not political. For example, the first law (1797) by which Congress limited what could be mailed banned newspapers with wet print because they damaged accompanying material. But politics won. Prior to and during the Civil War, governments of both the North and South banned just about anything they deemed to be 'seditious.' Private communication in America has never recovered. Recent history is rife with purely political postal measures such as the "Cunningham Amendment" (1962) which restricted the circulation of communist literature that originated in a foreign country.
The American government has always realized the political importance of controlling the flow of information. In the 1770s, communication occurred primarily through postal routes maintained by horseback riders. Today, we communicate through packets of data beamed across phone lines. This difference in the transmission mode is irrelevant to the principle involved. The key questions are, "who owns your words and ideas?" and "who has the right to read them?"
On May 6, 1999, the Ninth Circuit Court of Appeals ruled that federal restrictions on encryption violate the First Amendment: specifically, they constitute prior restraint and may limit the freedom of the press (Daniel J. Bernstein v. US Department of Justice). In the decision, Judge Betty Fletcher stated, "The availability and use of secure encryption may…reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights…but also the constitutional rights of each of us as potential recipients of encryption's bounty."
On September 16, the Clinton Administration sidestepped the court ruling through a new policy. It now requires a one-time technical review of encryption software as a precondition to permitting its export. No limit on the cost or time of such a review was stated. Then, on September 30, the government managed to convince the Ninth Circuit Court of Appeals that the Bernstein case should be reheard. The earlier decision was withdrawn.
Such maneuvers are not new. They are not in response to the threat of emerging technology. Prior restraint and requiring publications to meet government standards before circulation are as old as government itself.
Today, politicians wish to label encryption as sedition. They claim - without real evidence -- that this emerging technology provides opportunities for terrorists, spies, child molesters, drug lords…all the usual suspects. They ignore the fact that the vast majority of those who encrypt technology do so in an honest attempt to protect sensitive data, such as financial records.
What would Thomas Jefferson have said about all this? I suspect he would have said it in code.
Wendy McElroy is a regular columnist for the American Partisan.