[Thanks to all the local c'punks for your support of this court case! If we do end up asking for a temporary restraining order, there'll probably be another hearing soon. I'll give you as much notice as I have. --gnu] PROFESSOR ASKS FOR CONSTITUTIONAL REVIEW OF NEW ENCRYPTION REGS "Shell Game" Attempts to Continue Unconstitutional Rules December 30, 1996 Electronic Frontier Foundation Contacts: Shari Steele, Staff Attorney +1 301 375 8856, ssteele@eff.org John Gilmore, Founding Board Member +1 415 221 6524, gnu@toad.com Cindy Cohn, McGlashan & Sarrail +1 415 341 2585, cindy@mcglashan.com San Francisco - Laywers for Professor Dan Bernstein today asked the Government to delay enforcement of new encryption restrictions until they can be reviewed by a court for Constitutionality. The new regulations contain the same features struck down earlier this month by Judge Marilyn Hall Patel. "The government apparently decided to ignore Judge Patel's findings.", said Cindy Cohn, lead attorney in the case. "Instead of listening to Judge Patel's analysis and attempting to fix the regulations, they simply issued new ones with the same problems. We are giving them a a chance to fix this before we bring the issue up in court." President Clinton ordered on November 15 that the regulations be moved from the State Department to the Commerce Department. Judge Patel's decision of December 6 (released December 16th) struck down the State Department regulations as a "paradigm of standardless discretion" that required Americans to get licenses from the government to publish information and software about encryption. Over Christmas, the Clinton Administration published its new Commerce Department regulations, containing all the same problems, and put them into immediate effect today. The new regulations once again put Professor Bernstein at risk of prosecution for teaching a class on encryption and publishing his class materials on the Internet. His class begins on January 13 at the University of Illinois at Chicago. Professor Bernstein's letter of today proposes that the Government agree to delay enforcement of the new regulations while Judge Patel reviews them for Constitutionality. Failing that, Professor Bernstein will ask the court for a temporary restraining order to block their enforcement. "The government is forcing us to go back to Judge Patel again to have the new regulations declared facially unconstitutional." said Ms. Cohn. "This time we believe that a nationwide injunction against their enforcement is merited." "The new encryption rules are a pointless shell game," said John Gilmore, co-founder of the Electronic Frontier Foundation, which backed the suit. "Industry and Congress had asked that the draconian State Department regulations be eliminated in favor of existing, reasonable, Commerce Department regulations. Judge Patel invalidated the State Department regulations because they were draconian. Rather than address the concerns of either, President Clinton moved the draconian regulations into the Commerce Department -- and made them tougher in the process. It's his political decision whether to ignore and anger industry leaders, but he can't ignore a federal district court judge." Civil libertarians have long argued that encryption should be widely deployed on the Internet and throughout society to protect privacy, prove the authenticity of transactions, and improve computer security. Industry has argued that the restrictions hobble them in building secure products, both for U.S. and worldwide use, risking America's current dominant position in computer and communications technology. Government officials in the FBI and NSA argue that the technology is too dangerous to permit citizens to use it, because it provides privacy to criminals as well as ordinary citizens. Background on the case The plaintiff in the case, Daniel J. Bernstein, Research Assistant Professor at the University of Illinois at Chicago, developed an "encryption algorithm" (a recipe or set of instructions) that he wanted to publish in printed journals as well as on the Internet. Bernstein sued the government, claiming that the government's requirements that he register as an arms dealer and seek government permission before publication was a violation of his First Amendment right of free speech. This was required by the Arms Export Control Act and its implementing regulations, the International Traffic in Arms Regulations. The new regulations have the same effect, using the International Emergency Economic Powers Act, the Export Administration Regulations, and a "state of national emergency" that President Clinton declared in 1994 and has re-declared annually. In the first phase of this litigation, the government argued that since Bernstein's ideas were expressed, in part, in computer language (source code), they were not protected by the First Amendment. On April 15, 1996, Judge Patel rejected that argument and held for the first time that computer source code is protected speech for purposes of the First Amendment. On December 6, Judge Patel ruled that the Arms Export Control Act is a prior restraint on speech, because it requires Bernstein to apply for and obtain from the government a license to publish his ideas. Using the Pentagon Papers case as precedent, she ruled that the government's "interest of national security alone does not justify a prior restraint." Judge Patel also held that the government's required licensing procedure fails to provide adequate procedural safeguards. When the Government acts legally to suppress protected speech, it must reduce the chance of illegal censorship by the bureacrats involved -- in this case, the State Department's Office of Defense Trade Controls (ODTC). Her decision states, "Because the ITAR licensing scheme fails to provide for a time limit on the licensing decision, for prompt judicial review and for a duty on the part of the ODTC to go to court and defend a denial of a license, the ITAR licensing scheme as applied to Category XIII(b) acts as an unconstitutional prior restraint in violation of the First Amendment." She also ruled that the export controls restrict speech based on the content of the speech, not for any other reason. "Category XIII(b) is directed very specifically at applied scientific research and speech on the topic of encryption." The new regulations continue to insist that the Government is regulating the speech because of its function, not its content. The judge also found that the ITAR is vague, because it does not adequately define how information that is available to the public "through fundamental research in science and engineering" is exempt from the export restrictions. "This subsection ... does not give people ... a reasonable opportunity to know what is prohibited." Judge Patel also adopted a narrower definition of the term "defense article" in order to save it from unconstitutional vagueness. ABOUT THE ATTORNEYS Lead counsel on the case is Cindy Cohn of the San Mateo law firm of McGlashan & Sarrail, who is offering her services pro bono. Major additional pro bono legal assistance is being provided by Lee Tien of Berkeley; M. Edward Ross of the San Francisco law firm of Steefel, Levitt & Weiss; James Wheaton and Elizabeth Pritzker of the First Amendment Project in Oakland; and Robert Corn-Revere, Julia Kogan, and Jeremy Miller of the Washington, DC, law firm of Hogan & Hartson. ABOUT THE ELECTRONIC FRONTIER FOUNDATION The Electronic Frontier Foundation (EFF) is a nonprofit civil liberties organization working in the public interest to protect privacy, free expression, and access to online resources and information. EFF is a primary sponsor of the Bernstein case. EFF helped to find Bernstein pro bono counsel, is a member of the Bernstein legal team, and helped collect members of the academic community and computer industry to support this case. Full text of the lawsuit and other paperwork filed in the case is available from EFF's online archives at: http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/ The full text of today's letter from Professor Bernstein to the Government, and proposed stipulation, are at: http://www.eff.org/pub/Privacy/ITAR_export/ Bernstein_case/Legal/961230.letter http://www.eff.org/pub/Privacy/ITAR_export/ Bernstein_case/Legal/961230_proposed.stipulation The new Commerce Department Export Administration Regulations are available at: http://www.eff.org/pub/Privacy/ITAR_export/961230_commerce.regs