American Cryptology during the Cold War - The Black Vault

The United States already had legislation. But the Espionage Act of 1917 required
proof that the person revealing the secret information intended to injure the United
States. The courts had required a high standard ofproof, including the direct involvement
of agents of a wartime enemy, in order to secure a conviction. What if no enemy agents
were involved? Or what if the agents were from a "friendly" country? Or what if the
person simply gave the information to a reporter who published it?
Title 18 took care of all that. It made it a crime to divulge information relating to
various aspects ofcryptologic activities to an unauthorized person "or uses in any manner
prejudicial to the safety or interest of the United States or for the benefit of any foreign
government...." It cast a very broad net, was almost totally inclusive, and was legally
enforceable even in the absence of intent to injure. It could thus deter, or be used against,
well-meaning but misguided idealists. 67
Just as important, it implicitly authorized COMINT activities by acknowledging that
they were going on and by protecting their secrecy by law. Here was an implicit voiding of
Section 605 of the Federal Communications Act of 1934 and earlier statutes as they
related to cryptology.
This was followed two years later by the Truman Memorandum creating NSA and
describing its responsibilities. Here was the "lawful authority," even though classified, so
needed in the years prior to the war. As the years rolled on and Congress appropriated
money for NSA's activities, the legal status ofthe business became less and less debatable.
The 1959 anonymity statute (Public Law 86-36) for the first time named NSA in
legislation. Finally, in 1968 the Omnibus Crime Control and Safe Streets Act specifically
overruled Section 605 of the Federal Communications Act of 1934. Cryptology had made
the journey from a secret black chamber to an officially authorized and avowed
government activity.68
PUBLIC REVELATIONS AND CRYPTOLOGIC SECRECY
[It is] ofthe essence ofa secret service that it must be secret, andifyou once began disclosure, it is
perfectly obvious that there is no longer any secret service and that you must do without it.
Austen Chamberlain, Britishforeign secretary in the 1920s
Following Yardley, COMINT went underground. The Black Chamber had already been
destroyed by Secretary of War Stimson in 1929 (through the device of pulling State
Department funding). Its successor, Friedman's SIS, was so small (he started with a staff
of six) as to be effectively invisible. The Navy had an effort of comparable size, and the
entire enterprise proceeded reasonably secure from the eyes ofthe public.
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