American Cryptology during the Cold War - The Black Vault

competent authority...." Other competent authority could be the president or someone in
the Army or Navy chain of command. But as the word "intercept" had crept into the
statute, for the cryptologists who secretly plied their trade, this was unnerving news. It
implied that what they were doing might be illegal. Further, it had the effect of shutting
off liaison with the telegraph cable companies, who had in the early years supplied most of
the material that the Army worked on. (But by the late 1920s the Army, like the Navy
before it, was beginning to set up its own intercept stations.)63
Meanwhile, the American public was blissfully unaware of any cryptologic activity at
all - unaware, that is, until the publication of Yardley's The American Black Chamber in
1931. Worse, Yardley was hard at work on a sequel, to be called "Japanese Diplomatic
Secrets." It was never published - it became, in fact, the first publication ever suppressed
in the United States on the grounds ofnational security. To prevent any other revelations,
Congress in 1933 hurried through a bill that prohibited all government employees from
revealing their knowledge of American codes "or any matter which was obtained while in
the process of transmission between any foreign government and its diplomatic mission in
the United States." The penalty would be a $10,000 fine or ten years imprisonment,
considered to be a heavy enough hammer in those days. This appeared to be a backhanded
way of authorizing other black chambers. If such activity were illegal, then why protect
its activities from disc1osure?64
This step forward was followed immediately by disappointment. When the Federal
Communications Act was passed the following year, it contained the same clause
regarding "intercept." There was a good deal ofdiscussion about this within SIS and OP­
20-G. Legal minds pointed out that the statute prohibited intercept "and divulging" of
such communications. If it had said "or divulging," it would clearly have singled out the
process ofintercept as illegal. But the intercept activity would not be illegal unless it were
accompanied by "divulging," which, once again, referred to use of the information for
commercial gain. And the so-called Yardley Act the year before seemed to imply legality.
But there was a lingering suspicion that they might someday be prosecuted for what they
were doing on the basis of Section 605 of the Federal Communications Act of 1934. The
penalties were exactly the same as they were under the Yardley Act. 65
Following the 1945 Pearl Harbor hearings, which amounted to the second public
revelation of cryptologic activities, there were loud demands for legislation protecting this
vital activity. Within the Army and Navy themselves, lawyers drafted protective
statutes, and the Truman administration moved toward the introduction of legislation.
Finally, in 1949 a draft was ready, and it was steered through the Senate by Lyndon
Baines Johnson, a young senator from Texas. In 1950 the bill became law: Title 18,
U.S.C.798. 66 Ih'tUBLI!1 VIA TALI!1I