From: Michael Froomkin <Michael@umlaw.demon.co.uk>
Date: Tue, 18 Jul 95 10:27:54 PDT
To: liberty@gate.net
Subject: Re: Root Causes Roots
Message-ID: <2482@umlaw.demon.co.uk>
MIME-Version: 1.0
Content-Type: text/plain


Jim Ray asks what on earth I'm talking about the 9th amendment
not applying to the right to write code, since people were using 
codes to protect their communications long before the passage of 
the bill of rights.

I always understood "writing code" as in "cypherpuks write code" 
to mean computer code, that is FORTRAN, C++, assembler, perl or 
whatever.  I understand "writing IN code" to be the use of 
cryptographic tools such as codes or cyphers.  Thus my claim 
that the right to write IN code may have existed in the 1790s, 
but the right to write [computer] code could not (since there 
were no computers).   Of course, I could be wrong about this, 
since however you define it, it's debateable whether I'd pass the
code test to qualify as a cypherpunk, since I stopped writing 
code when I gave up programming for lawyering, and I didn't start 
writing in code when I started writing about codes.

In any case it's a matter of definitions, not timelines.

Note: I am not suggesting that the right to write code lacks 
constitutional protection; just that the protection wouldn't 
come from the 9th amendment.  My views on the constitutional 
right to write IN code, which also does not rely on the 9th 
amendment, can be found in my Clipper paper, which Hal Abelson 
has kindly ported in Netscape friendly form to:

http://

-- 
Michael Froomkin                   until Aug 6: michael@umlaw.demon.co.uk
U.Miami School of Law                                     London, England
mfroomki@umiami.ir.miami.edu <-- this will still find me
PO Box 248087 Coral Gables, FL 33124-8087     Rain. Sun. Rain. Sun. Rain.