DOJ mulls crypto ruling
May 11, 1999
by Ann Harrison
(IDG) -- The U.S. Department of Justice said it is reviewing and may appeal last week's appeals court ruling that found U.S. encryption export restrictions unconstitutional.
The Ninth Circuit Court of Appeals in San Francisco ruled that encryption programs are protected by the First Amendment and can be posted on the Internet or shipped overseas. The decision, written by Judge Betty B. Fletcher and joined by Myron H. Bright, said the regulations give "boundless discretion" to government officials. The ruling doesn't apply to executable programs, only source code instructions intended for human analysis.
The government can appeal the decision to the entire Ninth Circuit panel or the Supreme Court. It has 45 days to seek a rehearing on the case.
"The government will have the option to go for a stay [of execution], which we expect them to do," said Shari Steele, director of legal services for the Electronic Frontier Foundation (EFF), the San Francisco-based online civil liberties organization that co-sponsored the suit.
A three-judge panel upheld a lower court ruling in favor of Daniel J. Bernstein, a professor in the math and computer science department at the University of Chicago who was banned from posting the source code of his "Snuffle" encryption algorithm on the Internet. Bernstein filed his lawsuit after the U.S. government said he must seek an export license to post his code.
"I feel great, I'm bouncing off the ceiling right now. The court is telling me that I'm free to publish my work," said Daniel Bernstein, who said he never thought of the suit as a grand civil rights challenge.
If the government isn't granted a stay, which would temporarily bar enforcement of the judges' decision, the ruling would allow companies and individuals in the Ninth Circuit, which includes California, Oregon and Washington, to export any form of strong encryption without a license, including encryption devices.
The U.S. government had argued for years that encryption software is a "munition" that can be used to foil eavesdropping operations and compromise national security. But two of the three judges on the appeals court held that the federal export regulations "operate as a prepublication licensing scheme that burdens scientific expression."
"To hold the notion that source code, something that is meant to be read and written by people, is not communication would be an attempt to bypass the function of the First Amendment," said cryptographer Whitfield Diffie, co-inventor of public-key encryption.
John Gilmore, co-founder of the EFF, noted that the ruling would permit U.S. companies to export source code to a specific location overseas where it could then be distributed or compiled into binaries. He said the ruling should also put an end to what critics say has appeared to be arbitrary enforcement of encryption export laws.
"It just means that a lot of the fear, uncertainty and dread around the crypto regs are fading. And it means that they might actually have to enforce them as written, which would be a big step forward, even if they weren't declared unconstitutional," Gilmore said.
Steele said she hoped that the ruling would provide more momentum for the SAFE Act, which seeks to remove most encryption export restrictions.
Cindy Cohn, a lawyer who argued the case for the EFF, said judges from the Ninth Circuit, which includes Silicon Valley and Redmond, Wash., home of Microsoft Corp., appear to have more thorough understanding of the computer industry than many federal officials elsewhere. She added that the government's export restrictions made it difficult for companies and individuals to speak out against the controls. "We hope that this [ruling] will give them the courage to speak out," Cohn said.
Charles Williams, chief scientist at Cylink Corp. in Sunnyvale, Calif., which develops encryption products for virtual private networks at Raytheon, the U.S. Postal Service and PNC Bank, was eager to discuss the decision. Williams said he anticipates no immediate change at his company but that he expects an eventual proliferation of encryption products and growth of the entire encryption market as a result of the ruling.
"If it's upheld by the Supreme Court, it will increase our ability to serve our customers worldwide to secure e-commerce and international information," Williams said.
Judge Fletcher concluded her remarks on the decision by pointing out that the ability to shield privacy from surveillance carried out by governments, criminals or neighbors has never been more threatened. "The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost," Fletcher said.
Fletcher added that the government's efforts to control encryption not only challenged the First Amendment rights of cryptographers who wish to push the the boundaries of their science, but also the constitutional rights of citizens who may use encryption. "Viewed from this perspective, the government's efforts to retard cryptography may implicate the Fourth Amendment [protection against unreasonable search and seizure], as well as the right to speak anonymously, the right against compelled speech and the right to informational privacy," Fletcher wrote.
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