[rc5] INFO: Another win for the good guys
spcox at HUB.ofthe.NET
spcox at HUB.ofthe.NET
Tue Aug 26 09:12:56 EDT 1997
SAN FRANCISCO, Aug 25 (Reuter) - 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 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
Encryption involves running a readable message
though a computer program that translates the
message according to an equation or algorithm into
"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
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 importance."
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 government has previously cited national
security concerns over the export of encryption
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
The government told him his program was subject
to licensing by the Department of State prior to
Alleging that he was not free to teach, publish
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
mathematics, statistics and computer science at the
University of Illinois at Chicago.
Patel ruled last December that the old
limiting the export of encryption software violated
the First Amendment.
But late last year, President Bill Clinton issued
executive order transfering jurisdiction over the
export of nonmilitary encryption products to the
Patel's latest ruling was on Bernstein's amended
lawsuit which included the new regulations and new
Patel said that her finding that encryption
code was speech protected by the First Amendment did
not remove encryption technology from all government
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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