May 7, 1999
Court Calls Encryption Rules Unconstitutional
By PETER WAYNER
he United States government's restrictions on the export of encryption software are an unconstitutional prior restraint of free speech, a federal court in California ruled on Thursday.
The decision was handed down by a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco in the case of an Illinois mathematics professor who sought to distribute information about encryption on the Internet.
Two of the three judges on the court, upholding a lower-court ruling, concluded that the federal export regulations "operate as a prepublication licensing scheme that burdens scientific expression" and thus were prohibited by the First Amendment.
The federal government has long argued that encryption software used to scramble messages is a "munition" that can be used by foreign governments to thwart eavesdropping operations. In past wars, many battles have turned over information gleaned from intercepted messages and the United States intelligence community has fought hard to avoid giving up any technological high ground.
In recent years, many businesses and computer software companies have lobbied the government to relax these regulations, arguing that secret codes are essential to protect and expand Internet commerce. Moreover, they have argued that since encryption software is common overseas, American companies need more freedom to compete in the global market.
This case began when Daniel Bernstein, who now teaches mathematics at the University of Illinois at Chicago, was a doctoral student at the University of California at Berkeley. Bernstein developed an encryption program he called "Snuffle" and wanted to send it different members of the academic community to ask for comment. After Bernstein did not receive an export license, he chose to file a lawsuit backed with the legal and financial help of the Electronic Frontier Foundation.
The decision, written by Judge Betty B. Fletcher and joined by Myron H. Bright, explained that the court found the set of regulations vests "boundless discretion in government officials."
In the past, the Supreme Court has held any prior restraint on publication can only be supported in extreme cases. According to the opinion, licenses like the ones Bernstein was required to seek are a form of prior restraint that "run the twin risks of encouraging self-censorship and concealing illegitimate abuses of censorial power."
Judge T.G. Nelson dissented from the opinion and argued that trading encryption software was a form of conduct, not speech, and thus eligible for government regulation.
Nelson's arguments agree with the decision in a case brought by Peter Junger, a law professor in Ohio who also wanted to export encryption software. In that case, the judge concluded that software was a tool for controlling machines.
Fletcher and Bright disagreed with this point and stated, "The source code at issue here is text intended for human understanding, albeit in a specialized language." They tempered this claim by also stating that not all software was expression aimed for humans.
Both the Department of Justice, which brought the case, and the Department of Commerce, which reviews the applications for licenses, declined to comment as they reviewed the case.
John Gilmore, one of the board members of the Electronic Frontier Foundation, said, "We're certainly pleased that they upheld the District court's decision."
The decision is not expected to have much immediate effect because the past decisions have been stayed while the appeals are heard.
Cindy Cohn, the lawyer who argued the case for the EFF and Bernstein, said on Thursday: "Since you can't unpublish something once you publish it, the government has a pretty strong argument to stay the opinion. If they do, we'll probably ask for expedited review. He's been waiting a long time."
The Department of Justice could either ask the entire Ninth Circuit panel or the Supreme Court hear an appeal of the case.
