Förderverein Informationstechnik und Gesellschaft

US Encryption Export Policy Held Unconstitutional

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Date:          Thu, 06 May 1999 17:26:57 -0400
From:          Barry Steinhardt <>
Subject:       US Encryption Export Policy Held Unconstitutional

Scientist gets court relief from encryption limits
    By Aaron Pressman
   WASHINGTON, May 6 (Reuters) - A U.S. Appeals Court on Thursday
   found that
strict export limits on computer data scrambling technology violated
the free speech rights of a computer scientist who wanted to post his
encryption software program on the Internet.
   While the scope of the decision by a three-judge panel of the Ninth
Court of Appeals was limited to the scientist, University of Illinois
professor Daniel Bernstein, other academics and numerous
high-technology companies that oppose the export rules are likely to
seek a broader ruling.
   The Department of Commerce, which oversees the export limits, could
appeal the decision to the the full Ninth Circuit or the Supreme
   A spokeswoman for the agency said officials were still reviewing
on Thursday and declined to comment.
   In Thursday's decision, the court ruled that a version of
encryption program, called Snuffle, written in a way that humans could
understand known as "source code" was protected by the First
Amendment's free speech clause.
   Source code must be run through another program to create code
by a
computer known as object code.
   The court did not strike down the rules as applied to working
software programs, written to actually run on a computer.
   "To the extent the government's efforts are aimed at interdicting
flow of
scientific ideas (whether expressed in source code or otherwise), as
distinguished from encryption products, these efforts would appear to
strike deep into the heartland of the First Amendment," the court
   Bernstein's attorney, Cindy Cohn, said the decision meant the
   export rules
were unconstitutional for anyone living in the Ninth Circuit
territory, which includes California. "This is precedent for them that
it is unconstitutional in the ninth circuit," Cohn said.
   The case arose in 1995 after Bernstein, then a graduate student at
University of California, asked the State Department for permission to
put source code for Snuffle on the Internet. The department said the
posting would violate the export rules, so Bernstein sued.
   The Ninth Circuit court itself could have run afoul of the export
regulations. Thursday's decision, which included source code of
Bernstein's program, was posted on the Internet and could be seen by
viewers around the world. ((Aaron Pressman, Washington newsroom,
202-898-8312)) Thursday, 6 May 1999 17:19:17 RTRS [nN06125376]

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Barry Steinhardt		125 Broad Street
Associate Director		New York,NY 10004
ACLU					212 549 -2508 (v)		212 549-2656 (f)