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[FYI] M. Froomkin: "Statement on the Bernstein decision"


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Statement on the Bernstein decision

By Michael Froomkin, Professor of Law 
May 6, 1999 

The Ninth Circuit's decision in the Bernstein case is a major victory
for the First Amendment in the computer age. It confirms that just
because you use specialized tools to speak, like a computer, or a
specialized language to communicate, like a programming language, you
do not therefore put yourself outside the scope of the First
Amendment. These propositions are fundamental to free speech, and to
freedom of association, in the computer age.  And while it is
wonderful that the Court of Appeals ruled as it did, it is a pity that
the Justice Department's stonewalling on this issue made such a ruling
necessary in the first place. 

Today the Ninth Circuit-the court of appeals with jurisdiction over
Silicon Valley-holds that cryptographic source code is protected
speech. The court held, correctly, that the US Government's
unconstitutionally prevents the export of cryptographic source code
with a system of speech licenses. The court held that preventing
cryptographers such as Daniel Bernstein from using the Internet to
share their work with colleagues around the world is an
unconstitutional prior restraint on speech, one hedged with completely
inadequate procedural safeguards. 

This decision is especially important because U.S. government
representatives openly admit that they have been using the export
control laws to retard the domestic use of cryptographic software.
This decision, which I hope will be upheld by the Supreme Court, will
be the first step towards greatly increased use of cryptography in
domestic products, and enhanced personal privacy for all Americans. 

Perhaps the most important aspect of this decision is that the appeals
court recognizes the critical connection between the regulation of
cryptography and our modern lives: 

     "we note that the government's efforts to regulate and control
     the spread of knowledge relating to encryption may implicate more
     than the First Amendment rights of cryptographers. In this
     increasingly electronic age, we are all required in our everyday
     lives to rely on modern technology to communicate with one
     another. This reliance on electronic communication, however, has
     brought with it a dramatic diminution in our ability to
     communicate privately."

As the court recognized, the regulation of cryptography concerns us
all in our everyday existence, at a time when the ability of
governments and others to observe our everyday activities is at an
all-time high. Only the deployment of consumer cryptography offers the
ordinary citizen the technical means to attempt to carve out a zone of
privacy in an increasingly monitored world. The citizen's right to
protect privacy in this manner implicates not just the First amendment
but also the Fourth amendment and the right to speak anonymously.. 

The court was thus right on target when it noted that the regulation
of cryptography "touches on the public interest broadly defined.". 

A second important aspect of this decision is that the court
recognized the effect of technical change on the first amendment, and
rejected suggestions that just because speech has side effects it
somehow loses its protected status: 

     "the government's argument, distilled to its essence, suggests
     that even one drop of "direct functionality" overwhelms any
     constitutional protections that expression might otherwise enjoy.
     This cannot be so. The distinction urged on us by the government
     would prove too much in this era of rapidly evolving computer
     capabilities. The fact that computers will soon be able to
     respond directly to spoken commands, for example, should not
     confer on the government the unfettered power to impose prior
     restraints on speech in an effort to control its "functional"
     aspects. The first Amendment is concerned with expression, and we
     reject the notion that the admixture of functionality necessarily
     puts expression beyond the protections of the Constitution."

It is important to note, however, that this decision does not apply
directly to object code (actual ready-to-run programs) because
Bernstein only sought to export source code. Thus, even if you live in
California, it doesn't mean you can ship a compiled 3DES toolkit
anywhere in the world tomorrow morning. 

If the government appeals, the issue is very likely to go to the
Supreme Court for resolution given the government's claim that
national security might be affected. It is likely that the government
will request and receive a stay order if it chooses to appeal. 

Congratulations to Cindy Cohn and the rest of the Bernstein legal

More information on Cryptography and the Constitution 

More information on government regulation of cryptogragpy 

More information on the link between cryptography, e-cash, and privacy
-- Michael Froomkin Professor of Law U.Miami School of Law

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