Encryption rules rejected
Judge says federal regulations barring
unlicensed exports unconstitutional
August 26, 1997: 6:15 a.m. ET
SAN FRANCISCO (Reuter) - U.S. government
regulations on the export of encryption software
are unconstitutional, a federal judge ruled on
Monday.
U.S. District Judge Marilyn Hall Patel said
licensing requirements for the export of
encryption software and related devices were an
unconstitutional prior restraint on First
Amendment free speech rights.
Patel also issued a permanent injunction
barring the government from enforcing the
regulations against plaintiff Daniel Bernstein or
anyone who sought to use, discuss or publish his
encryption program.
Encryption involves running a readable
message though a computer program that
translates the message according to an equation or
algorithm into unreadable "ciphertext."
"By the very terms of the encryption
regulations, the most common expressive
activities of scholars -- teaching a class, publishing
their ideas, speaking at conferences, or writing to
colleagues over the Internet -- are subject to a
prior restraint by the export controls ...," Patel
wrote in a 32-page ruling released in San
Francisco.
Patel said that, having found the regulations to
be invalid, she could have issued a nationwide
injunction barring their enforcement. But she said
she had kept the injunction as narrow as possible
pending appeal because "the legal questions at
issue are novel, complex and of public
importance."
The ruling is important because the computer
industry sees use of encryption technology across
country borders as essential for advancing
electronic commerce and private communications
over the Internet.
The government has previously cited national
security concerns over the export of encryption
programs.
As a graduate student, Bernstein developed an
encryption algorithm he called "Snuffle." In 1992,
Bernstein asked the State Department whether
Snuffle was controlled by export regulations then
in force which classified cryptographic software
as "defense articles."
The government told him his program was
subject to licensing by the Department of State
prior to export.
Alleging that he was not free to teach, publish
or discuss with other scientists his theories on
cryptography embodied in the Snuffle program,
Berstein sued the State Department in 1995,
challenging the regulations on free speech
grounds.
Bernstein is now a research assistant professor
of mathematics, statistics and computer science at
the University of Illinois at Chicago.
Patel ruled last December that the old
regulations limiting the export of encryption
software violated the First Amendment.
But late last year, President Bill Clinton issued
an executive order transfering jurisdiction over
the export of nonmilitary encryption products to
the Commerce Department.
Patel's latest ruling was on Bernstein's
amended lawsuit which included the new
regulations and new defendants.
Patel said that her finding that encryption
source code was speech protected by the First
Amendment did not remove encryption
technology from all government regulation.
Cindy Cohn, a lawyer for Bernstein, called the
ruling a "very big victory" for free speech
advocates. "This brings us a step closer to people
being able to freely publish ideas about
encryption," she said.
A U.S. Justice Department lawyer who
defended the regulations could not immediately
be reached for comment. The government could
appeal the ruling.