(Fwd) U.S. Judge Rules Encryption Regulations Invalid

Ross Wright rwright at adnetsol.com
Tue Aug 26 13:42:30 PDT 1997

------- Forwarded Message Follows -------
From:          "Jim Broderick" <jfbroderick at hotmail.com>
To:            RWright at adnetsol.com
Date:          Tue, 26 Aug 1997 12:38:52 PDT

Tuesday August 26 9:39 AM EDT 

U.S. Judge Rules Encryption Regulations Invalid

SAN FRANCISCO - U.S. government regulations on the export of
encryption software are unconstitutional, a federal judge ruled. 

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

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

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

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
transferring 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. 

Copyright, Reuters Ltd. All rights reserved 

Ross Wright
King Media: Bulk Sales of Software Media and Duplication Services
Voice: (408) 259-2795

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