----- Forwarded message from John Gilmore -----
From cpunks Tue Aug 26 13:46:02 1997 Message-Id: <199708261734.KAA06596@toad.com> X-Authentication-Warning: toad.com: Host localhost [127.0.0.1] didn't use HELO protocol To: bernstein-announce@toad.com Subject: Crypto Export Restrictions are Unconstitutional Date: Tue, 26 Aug 1997 10:34:53 -0700 From: John Gilmore <gnu@toad.com> Reply-To: John Gilmore <gnu@toad.com> Sender: owner-cypherpunks@toad.com Precedence: bulk
CRYPTO EXPORT RESTRICTIONS ARE UNCONSTITUTIONAL Professor Bernstein is free to publish his software San Francisco, August 26, 1997 - The Federal District Court here struck down Commerce Department export restrictions on the privacy technology called encryption yesterday, concluding that "the encryption regulations are an unconstitutional prior restraint in violation of the First Amendment." For the first time, Judge Marilyn Hall Patel ordered the government not to prosecute or harass the plaintiff, Professor Daniel Bernstein, and those who use or publish his encryption software. The decision knocks out a major part of the Clinton Administration's effort to force companies to design government surveillance into computers, telephones, and consumer electronics. "This is wonderful news," said Prof. Bernstein. "I hope I can get some of my ideas published before they change the law again." The decision is a victory for free speech, academic freedom, human rights, and the prevention of crime. American scientists and engineers will now be free to collaborate with others in the United States and in foreign countries. This will enable them to build a new generation of tools for protecting the privacy and security of our communications. "Once again, it took a federal court to sort out technology and the Constitution," said Lori Fena, Executive Director of the Electronic Frontier Foundation, which backed the suit. "Let this decision signal the other two branches of government that when making laws pertaining to the Internet, they must honor their oaths to uphold the Constitution." The decision is strategic because the Clinton Administration has been using the export restrictions to influence domestic privacy policy. Companies that agree to build "key recovery" technology into their products are exempt from most of the restrictions. Key recovery, a follow-on to the Clipper Chip, is designed to give the government untraceable access to users' private information. The Federal District Court of the Northern District of California last December struck down the ITAR, a set of encryption restrictions enforced by the State Department. A few weeks later, the Government created virtually identical restrictions in the Commerce Department's Bureau of Export Administration (BXA). Yesterday's decision invalidates the new restrictions, stating, "the encryption regulations issued by the BXA appear to be even less friendly to speech interests than the ITAR." She warns that "the government cannot avoid the constitutional deficiencies of its regulations by rotating oversight of them from department to department," though concluding that she "does not believe that such was the intent here." "Our right to create, use, and deploy encryption come from our basic civil rights of free speech, freedom of the press, freedom from arbitrary search, due process of law, and privacy. Judge Patel has affirmed those roots in the First Amendment," philosophizes John Gilmore, Electronic Frontier Foundation co-founder. "Our Founding Fathers used encryption -- and even invented some -- and did not intend any ``crypto exceptions'' to the Bill of Rights." DETAILS OF MONDAY'S DECISION In the heart of the ruling, "The court declares that the Export Administration Regulations . . . insofar as they apply to or require licensing for encryption and decryption software and related devices and technology, are in violation of the First Amendment on the grounds of prior restraint and are, therefore, unconstitutional as discussed above, and shall not be applied to plaintiff's publishing of such items, including scientific papers, algorithms or computer programs." The Court also held that the government's 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, for example by making the government go to a judge to decide the issue. The EAR does not require this; in fact, it precludes it. "And most important, and most lacking, are any standards for deciding an application. The EAR reviews applications for licenses ``on a case-by-case basis'' and appears to impose no limits on agency discretion." The Court dissected the export controls' exemption for printed materials at length, calling it "so irrational and administratively unreliable that it may well serve to only exacerbate the potential for self-censorship." The government's "distinction between paper and electronic publication . . . makes little or no sense and is untenable." The Court not only declared that these regulations are invalid and unenforceable, but also prevented the Government from "threatening, detaining, prosecuting, discouraging, or otherwise interfering with plaintiff or any other person described . . . above in the exercise of their federal constitutional rights as declared in this order." The immediate effect of this decision is that Prof. Bernstein may publish his encryption software, and that others may read, use, publish and review it. In addition, others in industry are studying the court's analysis, and might decide to publish their own software on the Internet as well. Pretty Good Privacy, Inc, is one such company, which believes that future courts will find Judge Patel's reasoning persuasive. "We are particularly pleased the court has reconfirmed that computer programs, like other literary works, are accorded full protection under the First Amendment," said Bob Kohn, vice president and general counsel for Pretty Good Privacy. The final form of the judgment will be negotiated between the parties, and presented to the court within a week. The government could either seek an emergency appeal of the injunction, or take up to 60 days from the entry of judgment to appeal. 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 legal assistance is being provided by Shari Steele of the Electronic Frontier Foundation; Lee Tien of Berkeley; James Wheaton and Elizabeth Pritzker of the First Amendment Project in Oakland; and Robert Corn-Revere 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 to 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/ Scanned images of Monday's decision are available at: http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/ Legal/970825_decision.images/ The full text of Monday's decision will soon be available at: http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/ Legal/970825.decision Professor Daniel Bernstein will be building his new Constitutionally- protected cryptography web page at: http://pobox.com/~djb/crypto.html Electronic Frontier Foundation Contacts: Shari Steele, Staff Attorney 301/375-8856, ssteele@eff.org John Gilmore, Founding Board Member 541/354-6541, gnu@toad.com Cindy Cohn, McGlashan & Sarrail 415/341-2585, cindy@mcglashan.com ----- End of forwarded message from John Gilmore -----