Reuter on Bernstein Ruling

John Young jya at
Tue Aug 26 05:48:58 PDT 1997, CNN Online, 26 August 1997:

Encryption rules rejected 

Judge says federal regulations barring unlicensed exports unconstitutional 

San Francisco, Aug 25 (Reuter) - U.S. government regulations on the export
of encryption software are unconstitutional, a federal judge ruled on Monday. 

U.S. District Judge Marilyn Hall Patel said licensing requirements
for the export of encryption software and related devices were an
unconstitutional prior restraint on First Amendment free speech rights.

Patel also issued a permanent injunction barring the government
from enforcing the regulations against plaintiff Daniel Bernstein or anyone
who sought to use, discuss or publish his encryption program.

Encryption involves running a readable message though a computer
program that translates the message according to an equation or algorithm
into unreadable "ciphertext."

"By the very terms of the encryption regulations, the most common
expressive activities of scholars -- teaching a class, publishing their
ideas, speaking at conferences, or writing to colleagues over the Internet
-- are subject to a prior restraint by the export controls ...," Patel wrote
in a 32-page ruling released in San Francisco.

Patel said that, having found the regulations to be invalid, she
could have issued a nationwide injunction barring their enforcement. But she
said she had kept the injunction as narrow as possible pending appeal
because "the legal questions at issue are novel, complex and of public

The ruling is important because the computer industry sees use of
encryption technology across country borders as essential for advancing
electronic commerce and private communications over the Internet.

The government has previously cited national security concerns over
the export of encryption programs.

As a graduate student, Bernstein developed an encryption algorithm
he called "Snuffle." In 1992, Bernstein asked the State Department whether
Snuffle was controlled by export regulations then in force which classified
cryptographic software as "defense articles."

The government told him his program was subject to licensing by the
Department of State prior to export.

Alleging that he was not free to teach, publish or discuss with
other scientists his theories on cryptography embodied in the Snuffle
program, Berstein sued the State Department in 1995, challenging the
regulations on free speech grounds.

Bernstein is now a research assistant professor of mathematics,
statistics and computer science at the University of Illinois at Chicago.

Patel ruled last December that the old regulations limiting the
export of encryption software violated the First Amendment.

But late last year, President Bill Clinton issued an executive
order transfering jurisdiction over the export of nonmilitary encryption
products to the Commerce Department.

Patel's latest ruling was on Bernstein's amended lawsuit which
included the new regulations and new defendants.

Patel said that her finding that encryption source code was speech
protected by the First Amendment did not remove encryption technology from
all government regulation.

Cindy Cohn, a lawyer for Bernstein, called the ruling a "very big
victory" for free speech advocates. "This brings us a step closer to people
being able to freely publish ideas about encryption," she said.

A U.S. Justice Department lawyer who defended the regulations could
not immediately be reached for comment. The government could appeal the ruling.


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