[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
                  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 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 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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