The Founding generation was a notable procession of encryption users. Thomas Jefferson, George Washington, John Adams, and Benjamin Franklin, to name just a few, all prolifically employed ciphers in order to keep their correspondences free from the prying eyes of British agents during the Revolutionary War. Even after the founding they continued to use encryption. Jefferson and Adams, in particular, used it in regular communications, fearful that Postmaster General Gideon Granger – a man whose unscrupulous nature earned him a reputation as the J. Edgar Hoover of his day – would use his position to opportunistically seize upon state secrets and blackmail officials. The Founders understood the need for secure communications as necessary for a society to remain open and free, even during peacetime.
Of course, the proliferation of global communications platforms allows todays transnational terrorists to conspire more securely than ever before. However, the issues at stake today are not fundamentally different from those present at America’s founding. As John Fraser noted in a 1997 research paper for the Virginia Journal of Law and Technology: “there is no material difference in regard to the balance of power between the citizens and their government in 1796 versus 1996; the citizens can have the upper hand if they choose to use an excellent cipher.”
It was true in 1791. It was true in 1996. And it remains true in 2016.
“As we work together on these vital challenges,” McCaul and Warner’s oped concludes, “we must never lose sight of our Constitution and America’s core democratic values.” I agree, and would add we should not let fear mongering over possible worst-case scenarios involving encryption misdirect us from recognizing the immense value this technology offers us in the modern digital age. Here’s hoping the Commission champions that perspective.