2 Va. J.L. & Tech. 2 (Fall 1997) <http://vjolt.student.virginia.edu>
1522-1687 / © 1997 Virginia Journal of Law and Technology Association
UNIVERSITY OF VIRGINIA
2 VA. J.L. & TECH. 2
The Use of Encrypted, Coded and Secret Communications is an "Ancient Liberty" Protected by the United States Constitution
by John A. Fraser, III[*]
II. The Constitution Protects Ancient Liberties
A. An Overview of Ancient Liberties in Communications and Expression
B. McIntyre v. Ohio Elections Commission
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947) It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. See Abrams v. United States, 250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohioís blunderbuss approach than the facts of the case before us.
C. Significance of the Ancient Liberty Cases
III. Secret Communication Methods Were in Widespread Use Prior to Ratification of the Bill of Rights
A. Seventeenth and Eighteenth Century Britain and Colonial America
B. The American Revolution and the Founding Generation: 1775-1783
C. Post-Revolution America and the Founders
IV. Extensive Private Use of Secret Communications Has Continued to the Present Day
A. 1791 to 1800
B. Post-1800 Developments
C. Publication of Crytographic Knowledge
D. Courts and Cryptography
E. Patents for Cryptography
F. Post World War II Developments
G. The Government Acts to Control Encryption
V. Any Attempt to Abolish or to Substantially Burden the Liberty of Secret Communication Should Meet a Strong Presumption of Unconstitutionality
A. What is the Difference Between 1796 and 1996?
VI. Secrecy of Communications Serves Core Constitutional Interests and Should Be Protected as An Ancient Liberty
A. Protection of Dissent
B. Protection of Freedom of Thought and Developing Ideas
C. Protection of Political Expression and Parties
D. Protection of Personal Privacy
[*] Copyright, 1997, John A. Fraser, III. J.D., Washington & Lee Univ. School of Law, 1980; Candidate for LL.M. Degree, University of Virginia, 1997.
 See Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1749-50 (1995) for a discussion of why encryption technology can restore vital privacy to personal communications.
 A "code" is a pre-arranged set of meanings assigned to particular symbols. A "cipher" is a means to disguise or "encrypt" a text regardless of its correspondence to a pre-arranged set of meanings. "Cryptography" includes the use and design of means to communicate messages so that only certain people can understand the intended message. "Cryptology" is the study of cryptography and cryptanalysis. See A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709, 713-14 (1995). Professor Froomkin's valuable article also includes a technical appendix that describes and defines a number of important cryptological concepts, see id. at 885-897.
 This paper does not deal with the export of codes, encryption algorithms, cipher devices, or encryption technology. See Karn v. Depít of State, 925 F.Supp. 1 (D.D.C. 1996) remanded for consideration under new Executive Order, per curiam, No. 96-5121 WL 71750 (D.C. Cir. January 21, 1997) (export controls unreviewable); Bernstein v. Dep't of State, 945 F. Supp. 1279 (N.D. Cal. 1996) (export controls on encryption software regulate speech and may be subject to review). Nor is the paper intended to address the technical and broad social contexts in which secrecy of communications may be desired by users. See generally, Bruce Schneier, Applied Cryptography: Protocols, Algorithms, and Source Code in C, ch. 1 (2d ed. 1996) (providing extensive definitions and examples of use); Stewart A. Baker, Government Regulation of Encryption Technology: Frequently Asked Questions, 452 PLI/Pat. 287 (1996) (overview of encryption by former General Counsel of National Security Agency). For an overview of communications privacy issues, see Joel R. Reidenberg, Privacy in the Information Economy: A Fortress or Frontier for Individual Rights? 44 Fed. COMM. L.J. 195 (1992).
 A number of authors have addressed a variety of sources of legal protection for secret modes of communications. The most helpful articles that address encryption issues include Renae Angeroth Franks, The National Security Agency and its Interference with Private Sector Computer Security, 72 IOWA L. REV. 1015 (1987); Dorothy E. Denning, Edited Comments Concerning Regulating State Access to Encrypted Communications, 1994 ANN. SURV. AM. L. 415 (1994); Timothy B. Lennon, The Fourth Amendment's Prohibitions on Encryption Limitation: Will 1995 be like 1984? 58 ALB. L. REV. 467 (1994); Mark I. Koffsky, Comment, Choppy Waters in the Surveillance Data Stream: The Clipper Scheme and the Particularity Clause, 9 HIGH TECH. L.J. 131 (1994); Martin E. Hellman, Implications of Encryption Policy on the National Information Infrastructure, 11 COMPUTER LAW. 28 (1994); Charles L. Evans, U.S. Export Control of Encryption Software: Efforts to Protect National Security Threaten the U.S. Software Industry's Ability to Compete in Foreign Markets, 19 N.C. J. INT'L L. & COM. REG. 469 (1994); Kristine M. Nelson, The Clipper Initiative: Fact or Fiction in Future Encryption Policy, 16 HAMLINE J. PUB. L. & POLíY 291 (1994); Curtis E. A. Karnow, The Encrypted Self: Fleshing Out the Rights of Electronic Personalities, 13 J. MARSHALL J. COMPUTER & INFO. L. 1 (1994); Henry R. King, Note, Big Brother, The Holding Company: A Review of Key Escrow Encryption Technology, 21 RUTGERS COMPUTER & TECH. L.J. 224 (1995); Kirsten Scheurer, Note, The Clipper Chip: Cryptography Technology and the Constitution--the Governmentís Answer to Encryption "Chips" Away at Constitutional Rights, 21 RUTGERS COMPUTER & TECH. L.J. 263 (1995); Christopher E. Torkelson, The Clipper Chip: How Key Escrow Threatens to Undermine the Fourth Amendment, 25 SETON HALL L. REV. 1142 (1995); A. Michael Froomkin, The Metaphor is the Key, Cryptography, The Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709 (1995); Phillip E. Reiman, Cryptography and the Right to Be Unheard, 14 J. MARSHALL J. COMPUTER & INFO. L. 325 (1995); and Jill M. Ryan, Freedom to Speak Unintelligibly: The First Amendment Implications of Government-Controlled Encryption, 4 WM. & MARY BILL RTS. J. 1165 (1996). Several authors have implied that the Founders could not have anticipated the development of relatively strong encryption technology. See Reiman supra, at 327 n.15 (1995) (First Amendment law does not "fit" cryptography); M. Christina Ramirez, The Balance of Interests Between National Security Controls and First Amendment Interests in Academic Freedom, 13 J.C. & U.L. 179, 206 (1986) (uses of encryption have been almost exclusively military and government); cf. Froomkin, supra, at 798 & n.372 (suggests that at the time of the Revolution, government was unable to break many private ciphers, and that the Founders enjoyed freedom in use of encryption). The assumption that the Founders did not anticipate encryption that is strong enough to defeat government surveillance, and constitutional protection against government attempts to control encryption, is incorrect in light of the history of ciphers, codes, and secret writing in the early days of the Republic.
 "In some times and places the even more capacious new media will open wider the floodgates for discourse, but in other times and places, in fear of that flood, attempts will be made to shut the gates." Ithiel de Sola Pool, Technologies of Freedom 250 (1983).
 It is not within the scope of this paper to describe the process of selective incorporation that the Supreme Court has followed. A brief summation of the doctrine of incorporation may be found in The Oxford Companion to the Supreme Court of the United States 426-27 (Kermit L. Hall et al. eds., 1992).
 Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939).
 United States v. Grace, 461 U.S. 171 (1983) (striking down federal ban on leaflet distribution outside the Supreme Court itself); Schneider v. Irvington, 308 U.S. 147 (1939) (invalidating ordinances that barred public distribution of leaflets).
 Martin v. Struthers, 319 U.S. 141 (1943) (ordinance that forbids door-to-door distribution of literature is invalid as applied to Jehovahís Witness).
 Carey v. Brown, 447 U.S. 455 (1980) (statute that prohibited residential picketing was unconstitutional).
 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338 (1995).
 NAACP v. Claiborne Hardware, 458 U.S. 886 (1982) (consumer boycott is form of protected expression).
 New York Times v. Sullivan, 376 U.S. 254 (1964).
 Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
 City of Ladue v. Gilleo, 512 U.S. 43 (1994).
 Meyer v. Nebraska, 262 U.S. 390 (1923). Over a lone dissent by Justice Holmes, who thought that preventing the emergence of towns dominated by foreigners was a strong state interest, the majority overturned a Nebraska law that criminalized the teaching of German to school-age children. Accord Farrington v. Tokushige, 273 U.S. 284, 298-99 (1927) (overturning Hawaiian language restriction in schools); Bartels v. Iowa, 262 U.S. 404 (1923) (prohibition on teaching foreign languages is unconstitutional); Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926) (statute prohibiting use of some languages in business records is unconstitutional). See also Spence v. Washington, 418 U.S. 405, 411 n.4 (1974) (statute that restricts content of speech is unconstitutional even though it permitted other words to be used). Cf. United States v. Bromley, 53 U.S. 88 (1851) (implicitly recognizing First Amendment right to carry messages, but upholding mail monopoly law).
 514 U.S. 334 (1995). The McIntyre case is analyzed in Lee Tien, Who's Afraid of Anonymous Speech? McIntyre and the Internet, 75 OR. L. REV. 117 (1996); Richard K. Norton, McIntyre v. Ohio Elections Commission: Defining the Right to Engage In Anonymous Political Speech, 74 N.C. L. REV. 553 (1996); and Erika King, Comment, Anonymous Campaign Literature and the First Amendment, 21 N.C. CENT. L.J. 144 (1995).
 The factual description of the McIntyre case is taken from the majority opinion, 514 U.S. at 337-41.
 514 U.S. at 338 n.3.
 514 U.S. at 343 n.6. The anonymous authors included James Madison, Alexander Hamilton, and John Jay.
 514 U.S. at 357.
 514 U.S. at 358.
 514 U.S. at 358. Justice Thomas has pursued a jurisprudence of original intent in matters of Constitutional law from his first days on the Supreme Court. For Justice Thomas, "the Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now." South Carolina v. United States, 199 U.S. 437, 448 (1905), quoted in the concurring opinion by Justice Thomas in McIntyre, 514 U.S. at 359.
 This is plainly stated in Part IV of Justice Thomasí concurring opinion, where he criticizes the majority for its deviation from the "original understanding" of the First Amendment. 514 U.S. at 370.
 514 U.S. at 359.
 514 U.S. at 359, quoting from Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (Establishment Clause case). Justice Thomas makes a point in his concurring opinion of citing cases in which a majority of the Court has rested its judgment on the original intent of the Framers. These cases include INS v. Chadha, 462 U.S. 919 (1983) (separation of powers and Congressional veto). 514 U.S. at 359.
 514 U.S. at 360.
 There is a description of the John Peter Zenger seditious libel trial. 514 U.S. at 361.
 The actions and opinions of Elbridge Gerry, Henry Laurens, John Penn, and Merriweather Smith are quoted in describing the reactions of the Continental Congress to anonymous criticism in 1779. 514 U.S. at 361-62. The anonymous writings of William Livingston, governor of New Jersey, and the New Jersey legislatureís reactions to anonymous attacks on it, are also described. 514 U.S. 362-63.
 514 U.S. at 363-69.
 Id. at 367.
 Id. at 368-69.
 Id. at 370.
 Id. Having found the original understanding, Justice Thomas holds that there is no need for further analysis of content-based speech restrictions developed in prior cases.
 Id. at 371.
 Justice Scalia quotes Thomas Jefferson, writing to Judge William Johnson in 1823, and criticizing Chief Justice John Marshallís actions in Marbury v. Madison :
"[O]n every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
514 U.S. at 372 (Scalia, J., dissenting) (quoting 15 Writings of Thomas Jefferson 439 , 449 (A.Lipscomb ed., 1904) (letter to William Johnson, June 12, 1823)).
 Justice Scalia characterizes the historical materials cited by Justice Thomas as "partisan claims in the debate on ratification" and said that the cited materials did not concern "the point before us." 514 U.S. at 374.
 Justice Scalia would have gone further to uphold the Ohio restriction, arguing that the "universal" and "long-established" legislative practice should be preferred over what he characterized as "historical and academic speculation." Id. at 377 n.3. Because the identity of a speaker is at the "periphery" of the First Amendment, Justice Scalia would allow later historical actions by the states to override the earlier historical evidence when the earlier history is not directly on point. Id. at 378.
 Regardless of the criticisms of this "original intent" jurisprudence, it should be observed that evidence regarding the intent of the Framers has been utilized in Supreme Court opinions since the earliest years of the Court. Chief Justice John Marshall asserted that Marbury v. Madison, 5 U.S. 137 (1803), was controlled by the original intent of the Founders. Justice Brennan relied on original intent in School District of Abington Township v. Schempp, 374 U.S. 203, 294 (1963) (concurring opinion), where he said, "[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." In a number of areas, the actions and opinions of Thomas Jefferson and James Madison carry great weight because of their influential role in the formation of the nation, the Constitution, and the Bill of Rights. See, e.g., Graham v. John Deere Co., 383 U.S. 1 (1966) (patent law interpretation).
 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984); See United States v. O'Brien, 391 U.S. 367 (1968) (symbolic speech and content-neutral, tailored restrictions).
 Turner Broadcasting Sys. v. FCC, 512 U.S. 622 (1994). The importance of the speech/conduct dichotomy can also be seen in Bernstein v. Dep't of State, 945 F. Supp. 1279 (N.D. Cal. 1996), where the district judge concluded that encrypted communications are a form of speech.
 Compare City of Ladue v. Gilleo, 512 U.S. 43 (1994) (residential signs) or McIntyre, 514 U.S. 334 (1995) (anonymous political speech) with Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding ban on campaign signs on public property).
 Thus, in holding that consumer boycotts were an ancient practice protected by the Constitution, the Court did not have to convincingly explain how concerted refusal to do business with Claiborne Hardware was not "conduct" reached by the antitrust laws. NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). However, in the same year, the Court held that concerted refusals by a union to load Russian grain ships ran afoul of U.S. labor laws prohibiting secondary boycotts, and that such conduct is not protected by the First Amendment. Intíl Longshoreman's Ass'n v. Allied Intíl, 456 U.S. 212 (1982). The distinction would appear to be that organized labor did not demonstrate any deep historic roots for its harbor boycott practices.
 Each of the forms of communication or expression that the Court has treated as an "Ancient Liberty" can be regulated to some extent when it is abused to inflict demonstrable, non-political harm on other persons. See Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) (overturning injunction against residential picketing, but reserving power to prevent abuses); Intíl Bhd. of Elec. Workers v. NLRB, 341 U.S. 694, 705 (1951) (picketing for unlawful purpose not protected).
 By using the term "forms or types of expression or communication," it is not meant that the mode or style of expression has been held protected without regard to context--the elements of expression other than the mode of expression. The Supreme Court has dealt with many types of regulation of expression, including attempts by governments to regulate every element of expression, and has judged each of them in context. The elements of expression regulated by governments have included the motive or intent of the speaker (see, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)); the effect on the audience (see, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)); the identity of the speaker (see United States v. Nat'l Treasury Emp.Union, 513 U.S. 454 (1995) (striking down ex ante ban on speech of federal employees); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960)); the content of the message (see Meyer v. Nebraska, 262 U.S. 390 (1923)); the identity of the recipients of the expression (see FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Sable Communications v. FCC, 492 U.S. 115 (1989)); the quantity or volume of the expression (see Buckley v. Valeo, 424 U.S. 1 (1976); Ward v. Rock Against Racism, 491 U.S. 781 (1989)); the desire of the recipient to receive the materials (see Lamont v. Postmaster General, 381 U.S. 301 (1965)); and the means of delivery of the expression (see City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988) (newsracks); City of Los Angeles v Preferred Communications, Inc., 476 U.S. 488 (1986) (cable television); Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) (newspaper)). A particular governmental regulation may impinge on one or more of the elements of expression, but there does not appear to be a separate rule governing any of the different elements. For example, a hypothetical regulation restricting the use of American Sign Language, widely used by speech-disabled persons, would impinge (at least) on the elements of identity, content, and audience. There does not appear to be a separate line of cases for each element in this example, nor would there appear to be a rule for those types of regulation that impinge on numerous elements of a type of expression. The cases recognizing certain types of expression as having a historic and protected role in American history do not limit their holdings to any one element of expression or communication. Thus, in Meyer v. Nebraska, 262 U.S. 390 (1923), when the Supreme Court held that speaking and teaching a foreign language to a school-age child was protected, the holding necessarily dealt with the elements of the speaker, the audience, the content, and the means of delivery. The result is that there is no constitutional rule that protects all uses of a form or type of expression in all contexts. Context is critical. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S. 748, 756 (1976) (First Amendment protects communication, its source, and recipients); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (First Amendment protects right to utter, to print, to distribute, to receive, to read, to inquire, to teach and to think).
However, the focus on context has not defeated the analytical efforts of the lower courts which have reviewed attempts to regulate use of minority languages. See Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995) (en banc), revíd on other grounds, 117 S.Ct. 1055 (1997), (holding unconstitutional a requirement for use of English in transactions with state government); Davenport v. City of Alexandria, 710 F.2d 148, 150 n.3 (4th Cir. 1983) (en banc) (holding that a bagpipe performance is protected speech); Bernstein v. Dep't of State, 945 F. Supp. 1279 (N.D.Cal. 1996) (encrypted communications are protected speech); Asian American Business Group v. City of Pomona, 716 F. Supp. 1328 (C.D. Cal. 1989) (prohibition of completely non-English business signs violates First Amendment). Cf. Cohen v. California, 403 U.S. 15, 24 (1971) (Cohen had right to select offensive words to express his opposition to the military draft).
 A comprehensive review of the role played by historical precedents in all cases dealing with expression is outside the scope of this Article. There is no intention to imply that Constitutional protections for expression or communication are limited to those types of expression that meet this three-part test. Instead, it is asserted that the historical/legal approach evidenced in the Ancient Liberties line of cases does provide protection for some types of expression known and used by the Framers, with their evident approval. The Supreme Court has not limited its holdings to those subjects addressed by the Framers, and has extended First Amendment protection to prevent compelled speech (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338 (1995)) and to protect association and speech through membership in unpopular groups (NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 462 (1958). See also United States v. United States District Court, 407 U.S. 297, 314 (1972) (First Amendment protects right to speak confidentially).
 The discussion above includes, as examples, the use of political caricature and parody, consumer boycotts, picketing, anonymous political speech, and use of the streets and sidewalks for discussion of public issues. Abuses of these ancient liberties can be regulated, but restrictions of the rights must be supported by a compelling demonstration of need, and must preserve the basic right. See NLRB v. Gissell Packing Co., 395 U.S. 575, 616-20 (1969) (employer's speech to captive audience of employees is not protected speech where the understood meaning is one of intimidation or threat against exercise of protected right to organize); United Broadcasting Co. v. FCC, 565 F.2d 699 (D.C. Cir. 1977), cert. denied, 434 U.S. 1046 (1978) (renewal of broadcast license denied for radio station that persistently broadcast illegal lottery information in the form of coded scripture readings). A number of cases have dealt with abuses of the wearing of masks in public, with sometimes contradictory analyses. Cf. Hernandez v. Commonwealth, 406 S.E.2d 398, 401 (Va. App. 1991) (rejecting facial challenge to antimask law) with Hernandez v. Superintendent, 800 F.Supp. 1344, 1351 n.14 (E.D.Va. 1992), app. dsmíd, 8 F.3d 818 (4th Cir. 1993), cert. denied, 510 U.S. 1119 (1994) (challenger failed to show how antimask law infringed his freedom of association or freedom of speech). Froomkin, supra note 2, at 821-22 n.478 (1995) (collecting authorities on the mask issue.)
 David Shulman, An Annotated Bibliography of Cryptography (1976) [hereinafter Shulman, Bibliography].
 Shulman, Bibliography, supra note 50, at 3-26, included Giovanni Batista Porta, Magiae Naturalis 340-54 (1658) (describing the use of invisible inks); Johan Jacob Wacker, De Secretis, Libri XVII (1660) (ciphers); Sir Hugh Platt, The Jewel House of Art and Nature 13-15 (1593, 1613, and 1653) (use of secret ink and grille cipher device); John Willis, The Art of Stenographie (1602); 2 Francis Bacon, The Two Bookes of Francis Bacon 1.61 (1605) (describing use of ciphers); John Wilkins, Mercury, or the Secret and Swift Messenger (1641); Vandlus Hamid, The Entire Art of Wryting in Secret (1647); Noah Bridges, Steganographie and Cryptographie (1659); Sir Samuel Morland, A New Method of Cryptography (1666); John Falconer, Cryptomenysis Patefacta; or the Art of Secret Information (1685); Daniel DeFoe, An Essay Upon Literature 99-104, 109-10 (1726) (secret writing techniques); John Davys, An Essay on the Art of Decyphering (1737); and Philip Thicknesse, A Treatise on the Art of Decyphering (1772).
 John Wilkins was Bishop of Chester, Founder and First Secretary of the Royal Society, and Oliver Cromwell's Brother In-Law. David Kahn, The Codebreakers 155 (1967) [hereinafter Kahn, The Codebreakers].
 Wilkins, supra note 51, at ch. 2 (parables and scriptures); ch. 3 (inversion of known words); ch 4 (secret ink and paper); ch. 6 (changing the place of common letters); ch. 7 (keys); ch. 9 (double alphabets); ch. 11 (invented characters); ch. 12 (emblems and hieroglyphics); ch. 17 (sounds); ch. 18 (tunes and musical notes); ch. 20 (fire and smoke).
 Kahn, The Codebreakers, supra note 52, at 90 (Roger Bacon described use of ciphers in mid-1200s); 90-91 (Chaucer recorded instructions for astronomical device in cipher); 121-24 (Mary Queen of Scots' unsuccessful use of encryption to escape from prison in 1586-87). It appears that the need to communicate has always brought with it the need to communicate in confidence. For example, more than 5000 years ago in Sumeria and Iran, small symbolic figures representing articles of commerce were enclosed in clay envelopes that could only be read by being opened or broken. James Burke and Robert Ornstein, The Axemaker's Gift 42-44 (1995) (Sumeria); Denise Schmandt-Besserat, Two Precursors of Writing: Plain and Complex Tokens, in The Origins of Writing 34 (Wayne Senner ed., 1989) (Iran).
 Kahn, The Codebreakers, supra note 52, at 170-71.
 Kahn, The Codebreakers, supra note 52, at 171-74.
 Fletcher Pratt, Secret & Urgent; the Story of Codes and Ciphers 150-53 (1939).
 Harry Andrew White, Those Human Puritans, in American Antiquarian Society Proceedings 80-90 (1941).
 Fisher, George, The American Instructor 54-55 (1748) (printed by Benjamin Franklin and D. Hall).
 See James W. Thompson and Saul K. Padover, Secret Diplomacy: Espionage and Cryptography, 1500-1815 (1963) [hereinafter Secret Diplomacy] (describing widespread European and British practice of opening private mails).
 1 The Papers of Thomas Jefferson 15 (21 volumes) (Julian P. Boyd ed., Princeton, Princeton Univ. Press 1952-1983) [hereinafter Jefferson Papers].
 One of the earliest acts of the Continental Congress was to order that its Committee handling foreign correspondence use "cyphers." Ralph E. Weber, Masked Dispatches: Cryptograms and Cryptology in American History, 1775-1900 5-6 n.6. (1993) [hereinafter Weber, Masked Dispatches].
 David W. Gaddy, Introduction to Weber, Masked Dispatches, supra note 62.
 Edmund Cody Burnett, Ciphers of the Revolutionary Period, 22 American Historical Review 329 (1917) [hereinafter Burnett, Ciphers of Revolution] "During the Revolutionary period cipher was employed extensively not only in public correspondence where secrecy was especially important but in the private correspondence of public men as well." Id.
 An excellent general overview of the use of a tremendous variety of ciphers and encryption devices during the Revolutionary era is contained in Burnett, Ciphers of Revolution, supra note 65. Another superb summary is Weber, Masked Dispatches, supra note 62, at 4-68. Professor Weber sums up the attitude of the Founders as follows: "At the time of the American Revolution, the American Founding Fathers did not believe codes and ciphers were employed for purposes of evil and cruelty. Rather, they viewed secret writing as an essential instrument for protecting critical information in wartime, as well as in peacetime." Id. at 4.
 Ralph E. Weber, United States Diplomatic Codes and Ciphers, 1775-1938 22-23 (1979) [hereinafter Weber, United States Diplomatic Codes]; Kahn, The Codebreakers, supra note 52, at 174-76.
 Kahn, The Codebreakers, supra note 52, at 176.
 G.J.A. O'Toole, Honorable Treachery: A History of U.S. Intelligence, Espionage, and Covert Action from the American Revolution to the CIA 36-49 (1991). Washington's detailed instructions on use of invisible ink are printed at 47.
 Kahn, The Codebreakers, supra note 52, at 176-77.
 Weber, Masked Dispatches, supra note 62, at 57-59; Kahn, The Codebreakers, supra note 52, at 177-80.
 Weber, Masked Dispatches, supra note 62, at 21-22.
 Correpondence between John Adams, Abigail Adams, and James Lovell, in 4 The Adams Family Papers, Series II, Adams Family Correspondence 162-63, 172-74, 253-54, 326-28 (L.H. Butterfield ed., 1973). [hereinafter The Adams Papers]. The editorís history and explanation of the Adamsí uses of secret communications is in the appendix at The Adams Papers, supra, vol. 4, at 393-99. That history notes, among other things, that Lovell ciphers were also used by other Revolutionary War figures such as Benjamin Franklin, Horatio Gates, and W.F. Francis Dumas for private (i.e., non-governmental) correspondence in 1779-84. The Adams Papers, supra, vol. 4, at 394.
 The Adams Papers, supra note 73, vol. 4, at 326-28.
 The Adams Papers, supra note 73, vol. 4, at 393-94. When John Quincy Adams was United States Minister in Berlin in 1798, he devised a "sliding cipher" to protect his correspondence. Weber, Masked Dispatches, supra note 62, at 87-91.
 Jefferson's surviving correspondence, including those portions in code or cipher, is collected in The Jefferson Papers, supra note 61. As one of the more prolific users of secret communications methods, it should be understood that the following citations are merely examples. The Jefferson Papers, supra note 61, vol. 6, at 225-26; vol. 7, at 416-17, 444-46; vol. 8 at 580; vol. 12 at 102-03; vol. 15 at 153-54, 315-16, 366 (correspondence with Madison); vol. 6, at 233; vol. 7, at 290-91, 459-62, 563-64, 607, 638-40; vol. 8, at 42 (correspondence with Monroe); vol. 14, at 520-21; vol. 15, at 120, 188-90; vol. 16, at 6 (correspondence with Jay); vol. 8, at 173, 332-33, 394-95 (correspondence with Adams).
 Weber, Masked Dispatches, supra note 62, at 84-85.
 Weber, United States Diplomatic Codes, supra note 67, at 102-05, 382-401.
 Letters from James Madison to Philip Mazzei (July 7, 1781), in 3 The Papers of James Madison, at 176-81 (William T. Hutchinson & William M.E. Rachal eds., 1965) [hereinafter The Madison Papers] (refers to lack of cipher for letter to Mazzei); supra, vol. 2, at 211-16 & n.10 (partially encrypted letter from Mazzei dated November 30, 1780).
 The Madison Papers, supra note 79, vol. 3, at 293 & 294 n.6; vol. 4, at 174, 283-84. On May 28, 1782, Madison also corresponded with Joseph Jones, a member of the Continental Congress from Virginia, in an almost completely encrypted letter. The Madison Papers, supra note 79, vol. 4, 287-89.
 The Madison Papers, supra note 79, vol. 4, at 146-47, 148 n.9, 246-48, 350, 386-87, 396, 398 n.20, 418-19, 422 n.27, 435.
 The Madison Papers, supra note 79, vol. 4, at 262 (May 21, 1782 letter from Madison to Randolph, in which he says that he must decline to provide information to Randolph because the cipher is in use by Colonel Bland.)
 10 Dictionary of American Biography 5-9 (Dumas Malone ed., 1933) [hereinafter D.A.B.]
 Weber, United States Diplomatic Codes, supra note 67, at 37.
 Weber, Masked Dispatches, supra note 62, at 53-54, 67.
 Weber, Masked Dispatches, supra note 62, at 58; Kahn, The Codebreakers, supra note 52, at 179.
 D.A.B., supra note 83, vol. 8, at 330-31.
 Weber, United States Diplomatic Codes, supra note 67, at 93-97.
 D.A.B., supra note 83, vol. 15, at 353-55.
 Weber, Masked Dispatches, supra note 62, at 22-23.
 D.A.B., supra note 83, vol. 11, at 96-98. The City of London elected him Alderman as a show of disagreement with the government policy toward the American colonies after the fighting started in 1775. Id.
 Kahn, The Codebreakers, supra note 52, at 186.
 D.A.B., supra note 83, vol. 11, at 96-98.
 Secret Diplomacy, supra note 60, at 177-79; see also James Raymond Wolfe, Secret Writing: the Craft of the Cryptographer 171 (1970) (describing A. Lee's unsuccessful effort to convince Continental Congress to use a "dictionary" code).
 D.A.B., supra note 83, vol. 11, at 117-20.
 Weber, United States Diplomatic Codes, supra note 67, at 53, 56.
 3 Letters of Members of the Continental Congress xxxiii (Edmund Cody Burnett ed., United States Gov't Printing Office, 1921).
 Kahn, The Codebreakers, supra note 52, at 185.
 Weber, Masked Dispatches, supra note 62, at 11-13.
 D.A.B., supra note 83, vol. 7, at 222-227.
 Kahn, The Codebreakers, supra note 52, at 176.
 D.A.B., supra note 83, vol. 11, at 320-25.
 Kahn, The Codebreakers, supra note 52, at 184.
 Weber, Masked Dispatches, supra note 62, at 83 describes use of this code by Jefferson and Madison for private affairs.
 Weber, Masked Dispatches, supra note 62, at 68.
 Weber, Masked Dispatches, supra note 62, at 77.
 Weber, Masked Dispatches, supra note 62, at 42-51; Kahn, The Codebreakers, supra note 52, at 177-79.
 D.A.B., supra note 83, vol. 18, at 284-85.
 D.A.B., supra note 83, vol. 11, at 438-39; Weber, United States Diplomatic Codes, supra note 67, at 27-35.
 Burnett, Ciphers of Revolution, supra note 65, at 331.
 Kahn, The Codebreakers, supra note 52, at 181.
 Kahn, The Codebreakers, supra note 52, at 182. Lovell's other accomplishments are outlined at pages 183-84.
 D.A.B., supra note 83, vol. 11, at 32-35.
 Weber, Masked Dispatches, supra note 62, at 67.
 D.A.B., supra note 83, vol. 5, at 173-74.
 Shulman, Bibliography, supra note 50, at 3-8, describes the letters of Silas Deane to John Jay, June 11, June 18, September 17, and December 2, 1776.
 The prolific scholar, Edmund C. Burnett, who edited the Letters of Members of the Continental Congress, carefully noted the use of ciphers in a number of items of correspondence not otherwise noted above. These include vol. 3 at 231 & n.2 (May 12, 1778 letter from R.H.Lee to A.Lee, partially encrypted); vol. 4 at 155 (James Lovell to Horatio Gates, April 13, 1779, partially encrypted); vol. 4 at 424 & n.14 (June 1776 letter by Arthur Lee enclosing dictionary to be used as book cipher in correspondence by the Committee of Secret Correspondence); vol. 5 at 50 (James Lovell to B.Franklin, February 24, 1780, enclosing cipher); vol. 5 at 344 (Robert Livingston to Jay, August 26, 1780, enclosing cipher); vol. 8 at 19 (Monroe to Madison, February 1, 1785, partial encryption); vol. 8 at 421-22 (Monroe to Patrick Henry, August 12, 1786, alluding to a cipher); vol. 8 at 799 (Madison to Jefferson, September 21, 1788, partial encryption); vol. 8 at 812 (Madison to Jefferson, December 8, 1788, largely encrypted).
 The Writings of George Washington. (John C. Fitzpatrick ed., United States Government Printing Office, Washington, D.C. 1944) [hereinafter Fitzpatrick, ed., Washington Writings]. The March 2, 1789 correspondence between Innes and Washington is reproduced at vol. 30, 214-15. Henry (or Harry) Innes was a prominent attorney and Revolutionary War patriot in Virginia, as well as the first United States District Judge in Kentucky under the new Constitution. D.A.B., supra note 83, vol. 9, at 485-86.
 2 The Papers of George Washington, Confederation Series 550-51 (W.W. Abbott ed., University Press of Virginia 1992) (letter from Lafayette to Washington dated May 11, 1785, largely but not entirely in cipher).
 Id. at vol. 2, 226-28 (letter from Lafayette to Washington, December 21, 1784).
 Fitzpatrick, ed., Washington Writings, supra note 119, vol. 28, at 411-12.
 The Madison Papers, supra note 79, vol. 12, at 201-07 (Madison introduces Bill of Rights in House); vol. 12, at 185-86 (May 27, 1789 Madison letter to Jefferson, partially encrypted, in which Madison tells Jefferson that he intends to introduce a Bill of Rights in the House); vol. 12, at 360-65 (August 28, 1789 partially encrypted letter from Jefferson to Madison, in which Jefferson comments favorably on the proposed Bill of Rights).
 The Madison Papers, supra note 79, vol. 12, at 364-65. The partially encrypted information was a comment about Mirabeau, an important figure in the French Revolutionary Directorate.
 Weber, Masked Dispatches, supra note 62, at 83 & nn.2-4. Weber provides numerous other examples from the period between the end of the Revolutionary War and the commencement of the new, federal government under President Washington. Id. at 84 (Monroe, Adams, Jay, Jefferson, Madison).
 Froomkin, supra note 2, at 798 & n.372. Froomkin here refers to the existence of the Vigenere cipher and its status as an unbreakable cipher at the time of the Revolution, citing Kahn, The Codebreakers, supra note 52, at 214-21. Evidence as to which of the Founders used the Vigenere cipher was not found in researching this paper, but the point is entirely correct that government did not have the upper hand at the time the Bill of Rights was adopted.
 The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison, 1776-1826. 3 vols. (James Morton Smith ed., W.W. Norton & Co., 1995). Mr. Smith notes the use of enciphered communications between Jefferson and Madison at vol. 2, p. 750.
 The Papers of Alexander Hamilton. 27 vols. (Harold C. Syrett ed., Columbia University Press, New York, 1963-1987). The June 6, 1799 letter is found at vol. 23, 173.
 Id. at vol. 24, 167-69.
 Id. at vol. 26, 121-23. The editor includes the entire cipher and instructions, along with a translation.
 Weber, Masked Dispatches, supra note 62, at 93.
 The extraordinary case of United States v. Burr, 4 Cranch 455, 8 U.S. 455, 25 F.Cas. 2 (1807), presided over by Chief Justice John Marshall, contains a set of deciphered texts received by Brigadier General James Wilkinson in cipher, when Burr believed Wilkinson was part of his adventurous plot. 25 F.Cas. at 2-6. Marshall was familiar with ciphers from his diplomatic duties. Weber, Masked Dispatches, supra note 62, at 84.
 United States v. Burr, 4 Cranch 455, 8 U.S. 455, 25 F.Cas. 2 (1807) at 12 (opinion on commitment). The extraordinary political circumstances surrounding the charges of treason, the trial by a Chief Justice riding circuit, and the acquittal of Burr because of the weakness of the encryption evidence is described in Kahn, The Codebreakers, supra note 52, at 186-87. An extensive historical sketch concerning the case is also to be found at 25 F.Cas. 15.
 Kahn, The Codebreakers, supra note 52, at 192-95 (quotes from page 195).
 Weber, Masked Dispatches, supra note 62, at 6.
 Weber, Masked Dispatches, supra note 62, at 79-83. Weber also calls it "the most advanced cipher of its era." Id. at 83.
 Froomkin, supra note 2, at 798 & n.372.
 Weber, Masked Dispatches, supra note 62, at 6.
 Kahn, The Codebreakers, supra note 52, at 825-26, 836-53, provides information regarding the hundreds of commercial codes and commercially manufactured cipher machines sold in the United States.
 The statement holds for citizens, but during World War I and World War II, Presidents Wilson and Franklin Roosevelt issued Executive Orders or proclamations that severely restricted the ability of aliens to communicate in foreign languages by cable or telephone, and also prohibited the possession or use of ciphers and cipher codes by aliens. See J. Gregory Sidak, War Liberty, and Enemy Aliens, 67 N.Y.U. L. REV. 1402, 1413 n.57 (1992) (Wilson); Froomkin, supra note 2, at 851 & n.612 (Roosevelt).
 Kahn, The Codebreakers, supra note 52, at 192. The 1805 dictionary was followed by another, called the Telegraphic Dictionary (Brooklyn, NY 1812, Thomas Kirk, printer), cited in Shulman, Bibliography, supra note 50, at 3-9.
 Weber, United States Diplomatic Codes, supra note 67, at 191 & nn.50, 615.
 James Swaim, The Mural Diagraph, or the Art of Conversing Through A Wall (Philadelphia, 1829), cited in Shulman, Bibliography, supra note 50, at 1-33.
 William Thompson, A New Method for Instruction of the Blind. Also a New Method of Cryptography, etc. (Nashville, TN 1832), cited in Shulman, Bibliography, supra note 50, at 1-34.
 Anonymous, Cryptography, or Methods of Secret Writing Described, American Rail Road Journal n.p. (1833), cited in Shulman, Bibliography, supra note 50, at 1-34.
 Ithiel de Sola Pool, Technologies of Freedom 25-26 (1983). Kahn, The Codebreakers, supra note 52, at 189, says that Morse's telegraph "made cryptography what it is today."
 See Kahn, The Codebreakers, supra note 52, at 189, quoting Francis O.J. Smith, The Secret Corresponding Vocabulary etc., (1845).
 See, e.g., Henry J. Rogers, The telegraph dictionary, and seamen's signal book, adapted to signals by flags or other semaphores; and arranged for secret correspondence, through Morse's electro-magnetic telegraph: for the use of commanders of vessels, merchants, &c. (Baltimore, 1845), cited in Shulman, Bibliography, supra note 50, at 2-14.
 Pool, Technologies of Freedom at 37.
 Weber, Masked Dispatches, supra note 62, at 107-232; Kahn, The Codebreakers, supra note 52, at 214-853 (broad historic survey of Civil War to late 1960s). Because the focus of this paper is on the Revolutionary and immediate post-Revolution periods, this period will not be fully covered.
 Kahn, The Codebreakers, supra note 52, lists and documents use by smugglers (802-13), merchants hiding pricing codes from customers (824), for confidential financial information and business espionage (824-25), in oil and mining (825), in broadcasting (826), banking (826), telephony (826-27), fiber optic coding (829), signature authentication (829-30), pay-TV scrambling when approved by FCC (831-36), and dozens of other industrial uses (844).
 Pool, Technologies of Freedom at 37, 204.
 Schneier, Applied Cryptography at 139-47 (digital cash) 577-84 (electronic mail).
 See Pool, Technologies of Freedom at 178 (explaining cable and satellite television systems).
 Joseph Galland, An Historical and Analytical Bibliography of the Literature of Cryptography, (Northwestern Univ. Press, Evanston, Ill. 1945).
 In alphabetical order, Galland (pp. 21, 90, 94, 104, 108, 131, 172, 198, 200 and 206-07) cited George A. Bell, Bell's Phonetic Cipher ( Ohio State Journal, Columbus, 1881); Colonel Parker Hitt, Manual for Solution of Military Ciphers, (Press of the Army Service Schools, Ft. Leavenworth, Kansas1916); Frederick Edward Hulme, Cryptography, or the History, Principles, and Practice of Cipher-Writing, (London and New York, Ward, Lock & Co.1898); Edward Koch, Cryptography; or Cipher Writing; a Study of Cryptography, etc. (Belleville, Ill. Beuchler Pub. Co. 1936); Andre Langie, Cryptography: A Study in Secret Writings ( New York, E.P.Dutton & Co. 1922); Brig. Gen. Albert J. Myer, A Manual of Signals: For the Use of Signal Officers in the Field, etc. (New York, D. Van Nostrand 1872); Laurence Dwight Smith, Cryptography, the Science of Secret Writing (New York, W.W.Norton 1943); Elbert Wells, Outdoor Signalling ( New York, Outing Pub. Co.1911); Maj. James A. White, Military Signal Corps Manual (New York, Wireless Press 1918); and Herbert O.Yardley, The American Black Chamber (Indianapolis, Bobbs Merrill Co.1931).
 Galland, supra, passim. The earliest commercial code noted by Galland was that of J.R. Parker, The United States Telegraph Vocabulary, Being an Appendix to Elford's Marine Telegraph Signal Book (Boston, 1832).
 Galland, supra, passim. The articles by Edgar Allan Poe were published in Graham's Magazine (Philadelphia, 1841) in separate installments in July, August, October and December. Poe also wrote seriously about cryptographic subjects in some of his stories (e.g., The Gold Bug) and other articles cited by Galland at 145-46.
 Schneier, Applied Cryptography at 675-741.
 Kahn, The Codebreakers, supra note 52, at 818-21.
 Kahn, The Codebreakers, supra note 52, at 815-17 (describing use of decryption to break Teapot Dome scandal).
 See Abel v. United States, 362 U.S. 217 (1960) (use of cipher pads is evidence of espionage).
 Kahn, The Codebreakers, supra note 52, at 802-13. See also Froomkin, supra note 2, at 726-28 (describing criminal uses of encryption.)
 Helen Fouché Gaines, Elementary Cryptanalysis, A Study of Ciphers and their Solution (Boston, American Photographic Pub. Co. 1942).
 Id. at 2.
 See, e.g., Home Box Office v. Gee Co Inc., 838 F.Supp. 436, 438 (E.D.Mo. 1993) (enforcing 47 U.S.C. Section 553(a)(1) ban on decryption of satellite signals without authorization); Sylvester v. Ammons, 101 N.W. 782, 784 (Iowa S.Ct. 1904) (lay expert can testify as to meaning of codes on merchant inventory); W.L. Shepherd Lumber Co. v. Atlantic Coast Line R. Co., 112 So. 323, 327 (Ala. 1927) (expert may testify and decipher terms in an arcane shipping rate schedule); Collender v. Dinsmore, 55 N.Y. 200 (1873) (allowing parol evidence regarding meaning of shipping term "C.O.D." as between railroads). Cf. U.C.C. Section 1-201(39) ("signature" is sufficient if the symbol is intended as authorization); Barber & Ross Co. v. Lifetime Doors, Inc., 810 F.2d 1276 (4th Cir. 1987) cert. denied, 484 U.S. 823 (1987) (trademark is sufficient signature when so intended). It is also interesting to note that the Supreme Court's listing of those types of speech or expression that can be prevented and punished without running afoul of the First Amendment has not included encrypted, coded, or secret expression. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
 See, e.g., Abel v. United States, 362 U.S. 217, 240-41 (1960) (cipher pads are evidence of espionage); Rice v. United States, 35 F.2d. 689, 696 (2d Cir. 1929) cert. denied, 281 U.S. 730 (1930) (secret code used to authenticate telegrams in mail fraud case); See also, Kahn, The Codebreakers, supra note 52, at 802-15 (describing prosecution of smugglers during Prohibition based on expert testimony about use and interpretation of Acme commercial cipher).
 Shulman, Bibliography, supra note 50, at Part V, p.1 (listing patents).
 Id. at 2.
 Stewart A. Baker, supra, 452 PLI/Pat. at 308-310 (listing and describing patents granted in 1980-1995).
 35 U.S.C. Sections 181-88 (1988).
 M. Christina Ramirez, The Balance of Interests Between National Security Controls and First Amendment Interests in Academic Freedom, 13 J.C.& U.L. 179, 204-05 (1986).
 Froomkin, supra note 2, at 751-52. It should also be noted that the "RSA" patent, United States Patent No. 4,405,829, issued in 1983 to Rivest, Shamir, and Adelman, is for a product that is stronger than the cryptography products that the government will permit to be exported.
 Kahn, The Codebreakers, supra note 52, at 850, describes the decline of the old code and cipher companies. Schneier, Applied Cryptography describes role of computers and software in modern encryption. Froomkin, supra note 2, at 719-726, 728-30 (describes numerous commercial uses for modern encryption software.)
 National Research Council, Cryptography's Role in Securing the Information Society, ch. 2 (May 30, 1996) [hereinafter NRC Report].
 Froomkin, supra note 2, at 718-26, 728-30; Note, 4 WM. & MARY BILL RTS. J. at 1171-73.
 See Joel Reidenberg and Francoise Gamel-Pot, The Fundamental Role of Privacy and Confidence in the Network, 30 WAKE FOREST L. REV. 105, 107-10 (1995).
 Id. at 109.
 Kahn The Codebreakers, supra note 52, at 672-733.
 See generally, James Bamford, The Puzzle Palace (Boston, Houghton, Mifflin, 1982) (history of National Security Agency).
 See Froomkin, supra note 2, at 738 (describing brute force technique for breaking cipher).
 Froomkin, supra note 2, at 736-37; Note, The National Security Agency and Its Interference With Private Sector Computer Security, 72 IOWA L. REV. 1015, 1016 n.8 (1987) [hereinafter Iowa Note]. Much of the same history of the Clipper Chip is provided in Torkelson, supra, 25 SETON HALL L. REV. at 1143-45. A significant, recent description of the government's efforts to use DES to control encryption knowledge and products is NRC Report, supra note 176, ch. 8, Recommendation 4.1.
 DES is a single key cipher, meaning that both sender and recipient use the same key to cipher and decipher the message. Froomkin, supra note 2, at 736: For the guarantee, see Iowa Note, supra note 183, at 1016 & n.10.
 Iowa Note, supra note 183, at 1017.
 Iowa Note, supra note 183, at 1017 & n.20.
 Froomkin, supra note 2, at 736-37 & n.110.
 Iowa Note, supra note 183, at 1024.
 Iowa Note, supra note 183, at 1027 & n.93.
 (September 17, 1984).
 Iowa Note, supra note 183, at 1032 & n.118.
 Froomkin, supra note 2, at 737-38; NRC Report, supra note 176, ch. 7, ch. 8, Recommendation 4.1.
 Froomkin, supra note 2, at 739-40.
 Froomkin, supra note 2, at 742-48.
 Torkelson, supra, 25 SETON HALL. L. REV. at 1166-69.
 The National Research Council, Section 2.4.2, concluded in 1996 that "[g]iven that various books, technical articles, and government standards on the subject of cryptography have been published widely over the past 20 years, the basic knowledge needed to design and implement cryptographic systems that can frustrate the best attempts of anyone (including government intelligence agencies) to penetrate them is available to government and nongovernment agencies and parties both here and abroad."
 Froomkin, supra note 2, at 716-17.
 This article does not deal with or interpret any of the bills introduced in Congress in recent times to address encryption issues.
 Communications Assistance for Law Enforcement Act, Pub.L.No. 103-414, 108 Stat. 4279 (1994).
 Torkelson, supra, 25 SETON HALL L. REV. at 1165-66.
 The International Traffic in Arms Regulations (ITAR), 22 C.F.R. Sections 120-130 (1996). The ITAR regulations are adopted under the authority of the Arms Export Control Act, 22 U.S.C. Sections 2751-2796d (1994). Under the ITAR enforcement scheme now in place, encryption products stronger than the DES standard approved by the government are routinely denied export permission. Froomkin, supra note 2, at 748-50; Torkelson, supra, 25 SETON HALL L. REV. at 1162-64.
 Torkelson, supra, 25 SETON HALL L. REV. at 1172 & n.161; Charles Evans, U.S. Export Control of Encryption Software: Efforts to Protect National Security Threaten the U.S. Software Industry's Ability to Compete in Foreign Markets, 19 N.C. J. INT'L L. & COM. REG. 469 (1994); Froomkin, supra note 2, at 750. In 1996, the National Research Council found that the effects of the ITAR enforcement policy had been to drive vendors of software to a "lowest common denominator" and to "distort" the global market. NRC Report, supra note 176, § 4.3.1. The NRC also found that "[t]he spread of cryptography is inevitable because in the information age the security of information will be as important in all countries as other attributes valued today, such as the reliability and ubiquity of information." NRC Report, supra note 176, § 220.127.116.11.
 The entire thrust of government policy on encryption is based on the assumption that it is reasonable and lawful to require that citizens communicate in a manner that is subject to government supervision and eavesdropping. The 1994 Communications Assistance to Law Enforcement Act reaches out to build this technological assumption into telephone networks. The Clipper Chip proposal had no more basic premise. The continued enforcement of ITAR against strong encryption products that are in computer readable form, but not printed books, (see Karn v. Dep't of State, 925 F.Supp. 1 (D.D.C. 1996); Bernstein v. Dep't of State, 945 F. Supp. 1279 (N.D. Cal. 1996)) can also be seen as a further effort to carry out this philosophy, by discouraging domestic development and international distribution of encryption software not readily overborne by government computers. See Jill M. Ryan, Freedom to Speak Unintelligibly: The First Amendment Implications of Government-Controlled Encryption, 4 WM. & MARY BILL RTS. J. 1165, at 1174-89 (1996) [hereinafter William & Mary Note] (reviewing actions of federal government in recent years and concluding that goal is control of encryption).
 Froomkin, supra note 2, at 771.
 "[I]t is clear that the development and widespread deployment of cryptography that can be used to deny government access to information represents a challenge to the balance of power between the government and the individual. Historically, all governments under circumstances that further the common good, have asserted the right to compromise the privacy of individuals. ... [U]nbreakable cryptography for confidentiality provides the individual with the ability to frustrate assertions of that right." NRC Report, supra note 176, § 8.1.3.
 Cf. Froomkin, supra note 2, at 799-800 & n.375 (arguing that encryption may restore the "functional equivalent" of privacy of the 1790s, with the addition of rapid communications over great distances).
 The widespread, international availability of strong encryption is described in the National Research Council Report at ch. 8, Recommendation 4. See also, John Markoff, 2 Israelis Outline New Risk to Electronic Data Security, N.Y. Times, October 19, 1996, at A38) (banking cards that use DES standard of encryption are vulnerable to flaws discovered by Israelis); Froomkin, supra note 2, at 738 (describing flaws in DES found by researchers and critics).
 NRC Report, supra note 176, §§ 3.2-3.3 (outlining law enforcement and signals intelligence needs of government).
 Organization for Economic Cooperation & Development (OECD), OECD Meeting Makes Progress on Cryptography Guidelines (visited December 13, 1996) <http://www.epic.org/events/crypto_paris/releaseE_OECD.html> (describing series of OECD meetings on development of global standards for cryptography and law enforcement access to encrypted information); Exec. Order No. 13,026, 15 C.F.R. 742.15, reprinted in 50 App. USCA §2403(6)
 John Mintz and John Schwartz, Chipping Away at Privacy? Washington Post, May 30, 1993 at H1 (describing plan to ban encryption not based on government escrow); Professor Froomkin cites a speech where FBI Director Louis Freeh said that if all the FBI had was encrypted speech it was unable to decipher, then "the policy of relying on voluntary compliance with EES will have to change." Froomkin, supra note 2, at 810; See William & Mary Note, supra note 203, at 1188-89 (citing other testimony of federal officials).
 See NRC Report, supra note 176, § 3.2.4 (concluding, inter alia, that sophisticated and wealthy criminals such as drug cartel members have access to and use cryptography).
 The Executive Order signed on November 15, 1996 by President Clinton expressly states that it is not subject to judicial review, as did previous Executive Orders affecting encryption exports. See Karn v. Dep't of State, 925 F.Supp. 1 (D.D.C. 1996).
 Jaleen Nelson, Sledge Hammers and Scalpels: The FBI Digital Wiretap Bill and its Effect on Free Flow of Information and Privacy, 41 UCLA L. REV. 1139, 1162-67 (1994); Froomkin, supra note 2, at 811-822; William & Mary Note, supra note 203 at 1191-1221.
 Nelson, supra, 41 UCLA L. REV. at 1167-82; Froomkin, supra note 2, at 823-33; See also Randolph S. Sergent, A Fourth Amendment Model for Computer Networks and Data Privacy, 81 VA. L. REV. 1181 (1995).
 Froomkin, supra note 2, at 833-38; Greg S. Sergienko, Self Incrimination and Cryptographic Keys, 2 RICH. J.L. & TECH. 1 (1996).
 Froomkin, supra note 2, at 838-43.
 Arguably, one of the badges or incidents of peonage eliminated by the Thirteenth Amendment was control over all personal communications, including the refusal to allow any privacy in communications against the interests of the master. That this may be so can be seen from prisoner rights cases litigating the lack of any privacy in prison communications. Substantial elimination of communications privacy is a lawful aspect of status as a prisoner in a jail or penitentiary, and prison authorities do not violate the Constitution by imposing it on persons properly convicted and imprisoned. See United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996) cert. denied , 117 S.Ct. 276 (1996) (approving routine taping of telephone calls with persons other than counsel); Vester v. Rogers, 795 F.2d 1179, 1183 (4th Cir. 1986) cert. denied, 482 U.S. 916 (1987) (routine censorship and absolute prohibition on inter-prison mail upheld); Griffin-El v. MCI Telecommunications Corp., 835 F.Supp. 1114, 1122 (E.D. Mo. 1993) aff'd., 43 F.3d 1476 (8th Cir. 1994) (prisoner telephone conversations can be "branded" with introduction identifying origin of call despite prisoner's objections).
 Ex Parte Jackson, 96 U.S. 727, 733 (1877) held that the Fourth Amendment protected sealed letters placed in the United States Mail. Justice Field's opinion for the Court also held that, under the First Amendment, if "printed matter be excluded from the mails, its transportation in any other way cannot be forbidden by Congress."
 Weber, United States Diplomatic Codes, supra note 67, at 98.
 Weber, United States Diplomatic Codes, supra note 67, at 99-100, describes how Congress enacted mail opening legislation in 1782 and expanded and continued it in 1785 by a secret resolution, which was renewed in 1786.
 Id. at 100.
 See supra text accompanying note 119.
 For example, the Madison-Jefferson and Madison-Randolph correspondence is littered with use of encryption to protect developing thoughts on taxes (Weber, Masked Dispatches, supra note 62, at 83 & n.4 citing Madison to Jefferson, December 10, 1783) on personal political rivalries (Weber, Masked Dispatches, supra note 62, at 83 n.3, citing Madison to Jefferson, May 6, 1783) and Weber, Masked Dispatches, supra note 62, at 22-23 , citing Madison-Randolph correspondence. See discussion of Madison-Randolph political and personal correspondence at note 81, supra, and accompanying text.
 See supra text accompanying notes 127-128.
 Madison and Monroe found it necessary to use a private code while Monroe was in Congress. Weber, United States Diplomatic Codes, supra note 67, at 352-56, reproducing code.
 Weber, United States Diplomatic Codes, supra note 67, at 88. The same text reproduces surviving ciphers used for private correspondence by Madison and Randolph at 342-46.
 See supra text accompanying notes 74-75.
 The mails were subject to interception in America by robbers, and the carriers were sometimes stopped and searched. Weber, United States Diplomatic Codes, supra note 67, at 86, 97, 98.
 Weber, United States Diplomatic Codes, supra note 67, at 101.
 Weber, Masked Dispatches, supra note 62, at 95.
 Weber, United States Diplomatic Codes, supra note 67, at 107-08.
 Donald Merlin, Origins of the Modern Mind (1991), suggests that it is inevitable that humans will expand their reliance on coded communications. According to Merlin, the use of language is the "elemental component of human model building." (p. 219) Moreover, the human race has now launched itself, via the Internet and other external memory systems, on a third stage of evolution in which only those who know the "codes" can participate and access and use externally stored data. (p. 311-12) Because all forms of human communication can now be refined and expanded by digital devices, and because the modern mind is now a hybrid of internal and external memory, we are even more symbol and code-dependent than before. (p. 356, 382) A government that desires to control this process will feel compelled to control these essential communications pathways.