Court Decides Cypto Algs are Protected Speech

Rohit Khare (
Thu, 19 Dec 1996 09:02:41 -0500

December 19, 1996
Judge Rules Against Curbs on Export of Encryption Software


<Picture: S>AN FRANCISCO -- Government attempts to control the export of
data-scrambling software are an unconstitutional restriction on freedom of
speech, a federal judge said in a ruling made public Wednesday.

The ruling by Judge Marilyn Hall Patel of U.S. District Court in San
Francisco is a setback for the Clinton administration, which has been
attempting to orchestrate a compromise under which U.S. companies that
develop data encryption systems would have to give government agencies the
ability to eavesdrop on data and voice communications.

The ruling came in a suit filed by a University of Illinois-Chicago
mathematician and the Electronic Freedom Foundation, a group promoting
civil liberties in electronic communications, contending that the controls
were an unconstitutional prior restraint on freedom of speech.

In 1993 the State Department had ruled that the mathematician, Daniel J.
Bernstein, who was then a graduate student at the University of California
at Berkeley, would have to register as an international weapons dealer if
he wanted to publish an encryption program or discuss it at academic
conferences that foreigners might attend. The government has restricted the
export of some kinds of powerful encryption technology, fearing it might be
used to conceal illegal activities.

Bernstein filed suit in 1995, arguing that the government was violating the
Constitution in restricting the electronic publication of his scrambling
program called "Snuffle."

"I'm delighted at this ruling," said Cindy Cohn, a lawyer for Bernstein.
"It means that the government is not going to be able to treat encryption
software as if the First Amendment isn't relevant."

However, she acknowledged that the policy dispute was far from settled. She
said that the Justice Department had several options, including appealing
the decision or even arguing that it is moot because the Clinton
administration has shifted control of encryption technology to the Commerce
Department from the State Department.

Justice Department officials did not return calls seeking comment this
evening after Judge Patel's ruling was made public.

The government has long tried to control the spread of encryption hardware
and software, and until last month, under government arms regulations,
encryption software had been classified as a weapon.

New Commerce Department regulations governing the export of encryption
systems are expected to be published Dec. 22. Many U.S. computer and
hardware industry executives have been bitterly disappointed with recent
draft versions of the regulations.

In her ruling, Judge Patel stated that the Arms Export Control Act is an
unconstitutional prior restraint on speech, because it required Bernstein
to submit his ideas about cryptography to the government for review, to
register as an arms dealer, and to get a government license to publish his

Citing the Pentagon Papers case as a precedent, she ruled that the
government's "interest of national security alone does not justify a prior

The judge also held that the government's required licensing procedure
failed to provide adequate procedural safeguards to minimize the chance of
illegal government censorship.

Also in a ruling that may foreshadow the future course of the dispute,
Judge Patel said that the export controls restricted speech based on the
content of the speech. Government lawyers had argued that the export
controls restricted software because of its function, not its content. -- a
point also made in the draft versions of the new Commerce Department

Opponents of the export restrictions were uncertain about the consequence
of Wednesday's ruling, which is not binding outside California's Northern
Federal District.

"It's possible this may not apply to corporations," said Roel Pieper, chief
executive and vice chairman of Tandem Computers Inc., a Cupertino, Calif.,
maker of computer systems. "However, it's food for thought. We cannot be
guided in our competitive position by how many criminals the FBI would like
to catch."

Officials at the Electronic Frontier Foundation said that the immediate
effect of the decision was that Bernstein was now free to teach a
cryptography class that is scheduled to begin Jan. 13. He will be able to
post his class materials on the Internet.

"I'm very pleased," Bernstein said in a statement. "Now I won't have to
tell my students to burn their textbooks."