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Burr's cipher, sir: The 1807 treason case that featured in the Apple/FBI conflict

Glenn Fleishman | March 29, 2016
The damned fool who shot Alexander Hamilton in a duel also, some historians believe, wanted to set himself up as the Emperor of Mexico. Coded dispatches led to his downfall, but not conviction.

How does a cipher and code, used by a failed politician, dropped into the middle of a trial for treason in 1807, involving then-president Thomas Jefferson and Chief Justice John Marshall, lead to a citation and a counter-citation in a legal brief in 2016? It all leads back to Aaron Burr’s cipher, certainly. He did not throw away his key.

The trial is well known to students of American history. Burr, depicted accurately in the musical Hamilton as having few convictions except a desire to come out on top, had run in 1800 as Jefferson’s vice president on a ticket against incumbent John Adams. Constitutional peculiarities of the day led to Burr and Jefferson receiving equal electoral votes, in turn leading to 35 ballots in the House of Representatives until Jefferson prevailed with a majority of the states’ votes.

Burr had served reportedly admirably as veep, presiding over the Senate, especially in deciding an impeachment case in favor of Supreme Court Justice Samuel Chase against Jefferson’s attempts to weaken the judiciary. The case is a foundation for judicial independence, and has provided a long-standing bulwark for which he’s still commended. This and other matters did not endear Burr to Jefferson, who wanted to weaken the courts and federal control, and who booted Burr from the ticket in his successful re-election campaign of 1804. (Before the election that year, the constitutional oddity regarding electoral votes was resolved with the 12th amendment.)

While the election season was still underway in 1804, Burr, stung by Alexander Hamilton’s private and public attacks against him and Hamilton’s ultimate refusal of Burr’s demand for him to recant 15 years’ worth of statements, challenged him to a duel. We all know the outcome of that. Following Hamilton’s death, Burr fled charges in both New York and New Jersey, though they were ultimately dropped.

Burr completed his vice-presidential term in early 1805, then headed to the “west,” a so-called frontier that then stretched from much of Montana in a ragged line southeast to all but the southwesternmost portion of modern Louisiana. War with Spain seemed imminent. And this is where encryption catches up with Burr during a legendary treason trial.

Codes, ciphers, and substitutions

I’ll get into the nitty-gritty of Apple and the Department of Justice’s brief in the next section, and how it relates to Burr’s 1807 treason trial. But let’s look first at the encryption employed.

Several kinds of encoding systems were already popular in the 1600s in various countries, and some were used extensively by Americans in the Revolutionary War. Jefferson used them to secure messages during his ambassadorship to France (from 1784 to 1789) because, as the Monticello site notes, “Codes were an essential part of his correspondence because European postmasters routinely opened and read all diplomatic and any suspect letters passing through their command.” The posts were not safe in America, either—nor anywhere—whether for commercial or governmental purposes.


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