-----BEGIN PGP SIGNED MESSAGE----- Professor Froomkin writes:
Jim didn't take my Con Law I course.
True, and from what I hear, I regret not taking it.
In message <199507161819.OAA06090@bb.hks.net> Jim Ray writes: [cuts throughout]
Amendment IX -- "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
^^^^^^^
[The right to write code was among many rights NOT enumerated.]
Very hard to argue that the right to write code (as opposed to, say, the right to write in code)
A distinction my feeble mind fails to grasp, as doing the one is required in order to even make the other possible. [Now all can see why I had so much trouble in law school.]
existed in the late 18th century;
A short trip to:"CME's cryptography timeline" [Recently suggested on this list] and found at URL: http://www.clark.net/pub/cme/html/timeline.html Reveals some interesting code-history. [In case the good professor or others on the list are without a SLIP/PPP connection, a not-so-short excerpt from CME's cryptography timeline follows]: _____________________________________________________________ - - From David Kahn's ``The Codebreakers'': ``It must be that as soon as a culture has reached a certain level, probably measured largely by its literacy, cryptography appears spontaneously -- as its parents, language and writing, probably also did. The multiple human needs and desires that demand privacy among two or more people in the midst of social life must inevitably lead to cryptology wherever men thrive and wherever they write. Cultural diffusion seems a less likely explanation for its occurrence in so many areas, many of them distant and isolated.'' [p. 84] The invention of cryptography is not limited to either civilians or the government. Wherever the need for secrecy is felt, the invention occurs. However, over time the quality of the best available system continues to improve and those best systems were often invented by civilians. Again, from David Kahn: ``It was the amateurs of cryptology who created the species. The professionals, who almost certainly surpassed them in cryptanalytic expertise, concentrated on down-to-earth problems of the systems that were then in use but are now outdated. The amateurs, unfettered to those realities, soared into the empyrean of theory.'' [pp. 125-6] In the list to follow (until I learn how to make tables in HTML), each description starts with (date; civ or govt; source). Sources are identified in full at the end. about 1900 BC; civ; Kahn p.71; an Egyptian scribe used non-standard hieroglyphs in an inscription. Kahn lists this as the first documented example of written cryptography. 1500 BC; civ; Kahn p.75; a Mesopotamian tablet contains an enciphered formula for the making of glazes for pottery. 500-600 BC; civ; Kahn p.77; Hebrew scribes writing down the book of Jeremiah used a reversed-alphabet simple substitution cipher known as ATBASH. (Jeremiah started dictating to Baruch in 605 BC but the chapters containing these bits of cipher are attributed to a source labeled ``C'' (believed not to be Baruch) which could be an editor writing after the Babylonian exile in 587 BC, someone contemporaneous with Baruch or even Jeremiah himself.) ATBASH was one of a few Hebrew ciphers of the time. 487 BC; govt; Kahn p.82; the Greeks used a device called the ``skytale'' -- a staff around which a long, thin strip of leather was wrapped and written on. The leather was taken off and worn as a belt. Presumably, the recipient would have a matching staff and the encrypting staff would be left home. 50-60 BC; govt; Kahn p.83; Julius Caesar (100-44 BC) used a simple substitution with the normal alphabet (just shifting the letters a fixed amount) in government communciations. This cipher was less strong than ATBASH, by a small amount, but in a day when few people read in the first place, it was good enough. <SNIP! Off to some [slightly] more modern times.> 1564; civ; Kahn p.144(footnote); Bellaso published an autokey cipher improving on the work of Cardano who appears to have invented the idea. 1623; civ; Bacon; Sir Francis Bacon described a cipher which now bears his name -- a biliteral cipher, known today as a 5-bit binary encoding. He advanced it as a steganographic device -- by using variation in type face to carry each bit of the encoding. 1585; civ; Kahn p.146; Blaise de Vigenère wrote a book on ciphers, including the first authentic plaintext and ciphertext autokey systems (in which previous plaintext or ciphertext letters are used for the current letter's key). [Kahn p.147: both of these were forgotten and re-invented late in the 19th century.] [The autokey idea survives today in the DES CBC and CFB modes.] 1790's; civ/govt; Kahn p.192, Cryptologia v.5 No.4 pp.193-208; Thomas Jefferson, possibly aided by Dr. Robert Patterson (a mathematician at U. Penn.), invented his wheel cipher. This was re-invented in several forms later and used in WW-II by the US Navy as the Strip Cipher, M-138-A. 1817; govt; Kahn p.195; Colonel Decius Wadsworth produced a geared cipher disk with a different number of letters in the plain and cipher alphabets -- resulting in a progressive cipher in which alphabets are used irregularly, depending on the plaintext used. 1854; civ; Kahn p.198; Charles Wheatstone invented what has become known as the Playfair cipher, having been publicized by his friend Lyon Playfair. This cipher uses a keyed array of letters to make a digraphic cipher which is easy to use in the field. He also re-invented the Wadsworth device and is known for that one. 1857; civ; Kahn p.202; Admiral Sir Francis Beaufort's cipher (a variant of what's called ``Vigenère'') was published by his brother, after the admiral's death in the form of a 4x5 inch card. 1859; civ; Kahn p.203; Pliny Earle Chase published the first description of a fractionating (tomographic) cipher. 1854; civ; Cryptologia v.5 No.4 pp.193-208; Charles Babbage seems to have re-invented the wheel cipher. 1861-1980; civ; Deavours; ``A study of United States patents from the issuance of the first cryptographic patent in 1861 through 1980 identified 1,769 patents which are primarily related to cryptography.'' [p.1] 1861; civ/(govt); Kahn p.207; Friedrich W. Kasiski published a book giving the first general solution of a polyalphabetic cipher with repeating passphrase, thus marking the end of several hundred years of strength for the polyalphabetic cipher. 1861-5; govt; Kahn p.215; during the Civil War, possibly among other ciphers, the Union used substitution of select words followed by word columnar-transposition while the Confederacy used Vigenère (the solution of which had just been published by Kasiski). 1891; govt/(civ); Cryptologia v.5 No.4 pp.193-208; Major Etienne Bazeries did his version of the wheel cipher and published the design in 1901 after the French Army rejected it. [Even though he was a military cryptologist, the fact that he published it leads me to rate this as (civ) as well as govt.] <SNIP> ______________________________________________________________ End of copy from "CME's cryptography timeline." Thanks [and apologies] to David Kahn, whose 1960s book is well worth buying, even today. ______________________________________________________________ Professor Froomkin continues:
hence it is hard to argue that it could be "retained" today.
In view of the foregoing timeline excerpts, I would respectfully disagree.
Assuming that the ninth amendment has, or could have, teeth,
[I am certain it _would_, with ballot-access-fairness reform, but that's a side issue, like abortion, that should *not* occupy this list. I am, however, quite willing to discuss it by private e-mail. JMR]
it is unlikely to go beyond rights existing or closely analogous to those held by "the people" [free white males, more likely] at the time of the amendment's ratification. Just as well if you think about it carefully.
Careful thought reveals a atrong suspicion that the "3/5ths people" [slaves] had more use for crypto at the time than free white males did, but I doubt much, if any, evidence of that activity was preserved, and I'm sure it was _forcefully_ discouraged if ever discovered...My point is, slaves, or those who live in fear of eventual slavery, for whatever reason, have a strong affinity for cryptography. Note, for example, early use [mentioned in the timeline above] by the Jewish people. JMR Regards, Jim Ray "It is dangerous to be right when the government is wrong." Voltaire -----BEGIN PGP SIGNATURE----- Version: 2.6.2 Comment: Freedom isn't Freeh iQCVAwUBMAqmcG1lp8bpvW01AQFfHwP6AxRCwCIunx0GDuRkG5EZTjvkdPOIqaJd SAAdjHI12faTTL965zeNLw1ws/5/d+INC5U+j1i3mtRbBzb3rYZTRxtb3wmze0jR cQZblne2Q1jt1teH0xghFrrC3iPkIV9ILf5IdRafv1xqx/cv4/fuUpWb/89nCDzC U/mCFmCWNYE= =/+5k -----END PGP SIGNATURE-----