The all-cotton, preshrunk threat to national security

I've always loved computers, ever since I was a sci-fi kid in the 60s reading about the literally fantastic World of Tomorrow as it was envisioned then. I seriously considered going to an electronics school instead of college but at the time computers were big and expensive and required deep math skills, which I never had, so I just fiddled with radios and such. I decided I would study computers on my own as soon as I had the chance, and knew I wouldn't have to wait too long.

In law school I kept my eye on telecommunications policy and was especially curious about the First Amendment implications of the new technologies. A telephone is one-to-one communication; mass media such as radio and television are one-to-many; how long before we'd see many-to-many communication?

How long before everyone would have their own virtual radio station, printing press, even their own television station?

The first IBM-compatible home computers arrived in the early 80s and I bought one as soon as I could afford one, tearing it down to see how it worked and upgrading its innards piece by piece. Once early bulletin boards and home modems arrived I knew it was the start of something that would change the world. I was working at the University of Kentucky and could take two classes per semester so I started on a Master's in communications, with an emphasis on legal policy and emerging technologies, completing it in 1996.

Moore's law, named after the engineer Gordon Moore who posited it, has more or less held for five decades now: the number of transistor chips on a computer circuit board doubles every two years or so, with the effect of equally dramatic increases in computing power and decreases in cost; my Fitbit has more computing power than landed Apollo 11 on the moon.

Home computing power obeyed Moore's Law: faster, more powerful, cheaper PCs were released constantly in the 80s and 90s. As PCs and first modems and then high-speed data lines began to connect more and more people, with a constant feedback growth loop, people needed a way to keep some communications private. Enter encryption for home use.

Encryption just means making something secret, and has been around forever. Think secret codes, passwords, the Enigma machine in World War II. Thomas Jefferson created a cipher wheel to encode military correspondence. It was only natural that modern computer users would want secure communications, and industries like online banking couldn't come into being without them.

The first easy-to-use and powerful program for home PC encryption, "Pretty Good Privacy" or PGP, was released in 1991 and was free. It was a problem for the US's law enforcement "alphabet agencies" like the CIA, NSA, and DOJ. Until around 1990, the alphabet agencies had the most powerful computers in the world, powerful enough to decode any encryption. But thanks to Moore's law and ever-stronger cheap or free encryption software like PGP home computer users now had enough power to encrypt things in a way those agencies couldn't decode.

Too, such "strong" encryption programs were covered by laws dating back to the Cold War, prohibiting their export from the US. This led to the bizarre proposition that someone wearing a t-shirt emblazoned with nothing but the ones and zeroes making up PGP's code could be arrested for walking across the border into Mexico. (Such shirts were very popular at the time with geeks like, well, me.)

There was a strong push in Congress in 1993 to add a new chip (called the "Clipper" chip) to every new computer made or sold in America. It would provide a back door so that law enforcement could decode anything on the device. The argument was, how can we intercept a terrorist attack if we can't spy on their planning?

On the other hand, civil liberties activists argued that citizens have a right to speak and write without giving the government the ability to listen in. The computer industry also pointed out that bad guys could simply buy their hardware and software in another country.

I argued in my thesis that under the First Amendment Americans have a right to use whatever strong encryption they wish, and have no duty to let the government eavesdrop. Citizens can talk in a made-up language that only two people understand if they wish, or in Navajo, or with a system of hand gestures, and none of it is the government's business. That eventually became the accepted legal standard, though I'm sure my opinion had nothing to do with that.

As a corollary to the privacy provided by encryption, it's since become clear that under the First Amendment citizens have a general right to stay anonymous, e.g., https://caselaw.findlaw.com/us-supreme-court/357/449.html

Those developments helped bring us to where we are today, when everyone owns a printing press and a television station and can become as famous as they want to be--or stay anonymous and cause as much trouble as they can.

Within a few years the Clipper chip idea was abandoned as unworkable, bad for industry, and probably unconstitutional. Encryption and computer chips keep getting faster, stronger, cheaper, and that's where we find ourselves now, with What'sApp and many other platforms that let people worldwide communicate without the government listening in.

Of course, the government was right too—terrorists use strong encryption for their own nefarious purposes. As Ralph Waldo Emerson said, everything has two handles.