When Encryption Was a Crime: The 1990s Battle for Free Speech in Software
In 1977, a team of cryptographers at MIT made an astonishing discovery: a mathematical system for encrypting secret messages so powerful that it had the potential to make government spying effectively impossible.
Before the MIT team could publish a description of how this system worked, the National Security Agency (NSA) made it known that doing so could be considered a federal crime. The 1976 Arms Export Control Act (AECA) made it illegal to distribute munitions in other countries without a license, including cryptography. The penalty for violating AECA was up to 10 years in prison or a fine of up to one million dollars.
It was the beginning of the “crypto wars“—the legal and public relations battle between the intelligence community and privacy activists over the rights of citizens to use end-to-end encryption. Many of those who were involved in the crypto wars were associated with the “cypherpunk movement,” a community of hackers, hobbyists, and computer scientists, which the mathematician Eric Hughes once described as “cryptography activists.”
The crypto wars continue to this day: On October 11, 2020, U.S. Attorney General William P. Barr issued a joint statement with officials from six other countries that implored tech companies not to use strong end-to-end encryption in their products so that law enforcement agencies can access the communications of their customers.
The government’s stance traces back to World War II, when Allied code-breakers helped secure victory by deciphering secret messages sent by the Axis powers. “And that is the origin of the regulations that said, ‘This is munition, this is an item of war,'” civil liberties activist John Gilmore told Reason. “And the problem was that they didn’t really take freedom of speech, freedom of inquiry, academic freedom, into account in that.”
In 1977, the Institute of Electrical and Electronics Engineers, which was planning to hold a conference on cryptography at Cornell University, received a letter from an NSA employee posing as a concerned citizen, who wrote that the U.S. government considered these mathematical systems “modern weapons technologies” and that distributing them was a federal crime. The letter caused widespread alarm in the cryptography community.
In 1977, the computer scientist Mark S. Miller was a 20-year-old student at Yale. Like many future cypherpunks, he read about the breakthrough at MIT in Martin Gardner’s “Mathematical Games” column published in Scientific American. The article laid out the astounding details of what”RSA,” as it was called after its co-discoverers, Ron Rivest, Adi Shamir, and Leonard Adleman, made possible. Gardner omitted the technical details, but he offered his readers the opportunity to mail in a self-addressed stamped envelope to get a full description. The authors received 7,000 requests for the memo but didn’t end up distributing the paper because of the NSA’s threats.
“I decided quite literally that they are going to classify this over my dead body,” Miller recalls. He traveled to MIT and got his hands on the unpublished paper describing how RSA worked. Then he went to “a variety of different copy shops, so I wasn’t making lots of copies in any one place” and mailed them anonymously “to home and hobbyist computer organizations and magazines all across the country.”
“I gave copi
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