[Friends of crypto freedom should definitely attend. The courtroom holds approximately 50 people, and we'd like to fill it. Show Judges Williams, Ginsburg and Rogers the importance of the case. This is the first time that a crypto export case has hit a Court of Appeals, and your rights are very much at stake here. If you're in the DC metropolitan area, come on out on Friday morning! Show Phil Karn you support him as he challenges the export controls. --John] RESEARCHER KARN APPEALS, SEEKING TO OVERTURN IRRATIONAL ENCRYPTION RULES "Books are OK to publish, floppies are not" policy Washington, January 8 - Laywers for researcher Philip R. Karn, Jr. will argue in court this Friday that Government restrictions on distribution of encryption software violate the First and Fifth Amendments of the Constitution, and are "arbitrary, capricious and invalid" regulations. This week's hearing, on January 10, 1997 at 9:30AM in the US Court of Appeals for the District of Columbia Circuit, is open to the public at 333 Constitution Avenue, Washington DC. The Government will argue that its rules are its own business, which courts should not oversee, and that it is legitimate to regulate free speech and publication when the government is uninterested in suppressing the content thereof. (The government actually has a strong interest in suppressing the public's ability to understand and deploy strong cryptography, but has managed to convince the district court of the opposite.) The lawsuit is complicated by the Government's introduction last month of new encryption regulations. President Clinton ordered on November 15 that the regulations be moved from the State Department to the Commerce Department. Over Christmas, the Clinton Administration published its new Commerce Department regulations, which are effectively identical to the State Department regulations, and put them into immediate effect. Mr. Karn's case only named the State Department. In an unusual switch, the Government is arguing that it should be able to replace the State Department with the Commerce Department as a defendant, in the hope of keeping the case alive. (Most defendants would be happy to have the case disappear. The State Department appears to be hoping they will get a better decision in this case than in related cases.) The State Department regulations at issue were struck down in December by Judge Marilyn Hall Patel in a similar case brought by Professor Daniel Bernstein in San Francisco. Judge Patel called the regulations a "paradigm of standardless discretion" which required Americans to get licenses from the government to publish information and software about encryption. No court has yet ruled on the new Commerce Department regulations, which include the same provisions that were declared unconstitutional. "This case clearly raises an issue of fundamental importance to cryptographers and computer programmers generally," said Kenneth Bass, lead attorney in the case. "The fundamental issue is how the courts will treat computer programs. Books are entitled to the full protection of the First Amendment, but the trial judge in this case decided that source code on a diskette does not enjoy that same protection. Programmers immediately recognize the utter irrationality of this distinction. We now will see whether the appeals courts will also see it that way." "Phil Karn's case illustrates both the irrationality of the encryption rules and the depths of the bureaucratic mazes which protect them," said John Gilmore, co-founder of the Electronic Frontier Foundation, which backed the suit. "The idea that the First Amendment protects the author of a book, but not the author of an identical floppy disk, is ridiculous. All books, magazines, and newspapers are written on computers today before print publication, and many are also published online. Yet here we have Government lawyers not only defending their right to regulate machine-readable publication, but also arguing that the courts are not permitted to re-examine the issue. Their argument amounts to `Trust us with your fundamental liberties'. Unfortunately, a decade of NSA actions have amply demonstrated that they are happy to sacrifice fundamental liberties when it gives them an edge in some classified spy program. Unless there's a clear and present danger to our nation's physical security (which we have seen no evidence of), our citizens' right to speak and publish freely is much more important to American national security than any top-secret program." 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 Mr. Philip Karn is an engineer with a wide and varied background in radio and wire communications. He has given many years of volunteer work in the amateur radio service, amateur satellite service, and in the Internet community. He is the author of the freely available "KA9Q" internet software for DOS machines, which forms the basis of many amateur radio experiments as well as several successful commercial products. He has written and given away various cryptographic software, including one of the world's fastest versions of the Data Encryption Standard (DES). Phil also did the initial research into encrypting Internet traffic at the packet level. Mr. Karn's home page is at http://www.qualcomm.com/people/pkarn/ . In 1994, author Bruce Schneier published _Applied Cryptography_, a best-selling encryption textbook which included some fifty pages of encryption source code listings, including very strong algorithms such as "Triple-DES". As an civil libertarian, Mr. Karn asked the State Department whether the book could be exported; they replied that it was in the public domain and could therefore be exported. Mr. Karn then created a floppy disk containing the source code from the book, and asked if the floppy could be exported. The State Department determined in May 1994 that the floppy was a munition. Mr. Karn would need to register as an arms dealer to be able to export the disk. After several administrative appeals, Mr. Karn filed suit in September 1995. The suit asks a court to declare that the decision was invalid because the distinction between publication on paper and publication on floppies has no rational basis, and because the decision violates Mr. Karn's right to publish the floppy. Judge Charles R. Richey dismissed the case in a strongly-worded 36-page opinion. "The plaintiff, in an effort to export a computer diskette for profit, raises administrative law and meritless constitutional claims because he and others have not been able to persuade the Congress and the Executive Branch that the technology at issue does not endanger the national security. This is a "political question" for the two elected branches under Articles I and II of the Constitution." Mr. Karn, whose effort was motivated by concern for civil rights rather than profit, appealed. This week's hearing is the first public hearing in his appeal case. The regulations at issue in the case, which prevent American researchers and companies from exporting cryptographic software and hardware, are a relic of the Cold War. The secretive National Security Agency has built up an arcane web of complex and confusing laws, regulations, standards, and secret interpretations for years. These are used to force, persuade, or confuse individuals, companies, and government departments into making it easy for NSA to wiretap and decode all kinds of communications. Their tendrils reach deep into the White House, into numerous Federal agencies, and into the Congressional Intelligence Committees. In recent years this web is unraveling in the face of increasing visibility, vocal public disagreement with the spy agency's goals, commercial and political pressure, and judicial scrutiny. ABOUT THE ATTORNEYS Lead counsel on the case are Kenneth C. Bass III and Thomas J. Cooper of the Washington law firm of Venable, Baetjer, Howard & Civiletti, who are offering their services pro bono. 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 funding the expenses in Mr. Karn's case. The full text of the lawsuit and other paperwork filed in the case is available from Phil Karn's web site at: http://www.qualcomm.com/people/pkarn/export/index.html SOURCE: Electronic Frontier Foundation CONTACT: Ken Bass, lead attorney, +1 202 962 4890, kbass@venable.com; or Shari Steele, EFF Staff Attorney, +1 301 375 8856, ssteele@eff.org; or John Gilmore, EFF Board Member, +1 415 221 6524, gnu@toad.com