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EFFector - Volume 10, Issue 11 - Bernstein First Amendment Crypto Case Proceeds to Circuit Court


EFFector - Volume 10, Issue 11 - Bernstein First Amendment Crypto Case Proceeds to Circuit Court

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EFFector        Vol. 10, No. 11        Dec. 4, 1997
A Publication of the Electronic Frontier Foundation        ISSN 1062-9424


Bernstein First Amendment Crypto Case Proceeds to Circuit Court
  Press Release, Dec. 4, 1997
  Contact Information
  Note to EFF Members and Bernstein Supporters in the SF Bay Area
EFF Joins Internet Free Expression Alliance, Adds Filter Principles
EFF Advises FCC, "No Internet/Computer V-Chip"
Quote of the Day

 * See for more information
   on current EFF activities and online activism alerts! *


Subject: Bernstein First Amendment Crypto Case Proceeds to Circuit Court

* Press Release, Dec. 4, 1997

                      Electronic Frontier Foundation

             Historic Ninth Circuit Court of Appeals hearing on
        Bernstein case issues of encryption, free speech and privacy
                                December 8

On Monday, December 8, around 10:30AM, the US Government will be before
the Ninth Circuit Court of Appeals (Courtroom 1, 95 Seventh Street, San
Francisco) arguing that anyone who wants to publish a computer program
containing encryption has to first ask permission from government
officials whose decision cannot be appealed in any court.  The case is
Bernstein v. US Dept.  of Commerce. 

This appellate hearing is an attempt by the US Government to overcome a
resounding First Amendment, privacy and online commerce victory secured by
mathematician Daniel Bernstein who brought suit claiming that governmental
restrictions on the distribution of encryption software are impermissible. 

On August 25, 1997, Federal District Court Judge Marilyn Hall Patel ruled,
"the encryption regulations [of the US Government] are an unconstitutional
prior restraint in violation of the First Amendment" and thereby found
encryption export controls to be illegal. 

The government appealed and barely three months later an expedited appeal
will be heard on Monday, December 8 at roughly 10:30AM in the Ninth
Circuit Court of Appeals, in San Francisco. This Appellate hearing may be
the final stop before the US Supreme Court.

"The Bernstein case on encryption, free speech and communication privacy is
critical to both businesses and individuals because the Clinton
Administration has been using export controls on encryption to influence
domestic privacy policy," observed Lori Fena, Electronic Frontier
Foundation (EFF) Executive Director. "US software companies that agree to
build 'key recovery' into their products are exempt from most export
restrictions, but 'key recovery' gives the US government untraceable and
secret access to users' private information and conversations."


Immediately following the Ninth Circuit hearing, the EFF will convene a
panel of the Bernstein legal team lawyers and first amendment professors
from Bay area law schools to comment on the day's proceedings.  The panel
discussion will take place at the Best Western motel, 200 feet from the
Court building, 121 Seventh Street, SF. (between Mission and Howard) 

"The right to create, use and publish encryption comes from our basic civil
rights of free speech, freedom of the press, freedom from arbitrary search,
due process of law, and privacy," Fena indicated.  "Our ability to use
the Internet for secure communication of our most personal, private matters
demands no less."

* Contact information

Ninth Circuit information: calendar clerk: 415-556-9780

The Electronic Frontier Foundation is is a nonprofit, civil liberties
organization working in the public interest to protect privacy, free
expression and access to online resources and information.  EFF is a
primary sponsor of the Bernstein case.  EFF helped to find Bernstein pro
bono counsel, is a member of the legal team and helped collect members of
the academic and computer industry community to support the case.

Bernstein case legal documents are available at

EFF and Legal team contacts:

Cindy Cohen, McGlashan and Sarrail
head of the Bernstein legal team

Shari Steele, EFF staff attorney

John Gilmore, Founding EFF board Member

[End press release]

* Note to EFF Members and Bernstein Supporters in the SF Bay Area

If you will be in the area, you may wish to attend the hearing, as this
will help show the court that this is an important case with a lot of
public attention.  Business attire would be appropriate.  The court
building will have metal dectors at the entry point, so sensitive devices
that should not be subjected to a metal-detector should be left at home

* Background

                 Backgrounder on EFF-Supported Challenge 
                  to the Export Controls on Encryption,
               Bernstein v. U.S. Department of State, et al.

The Electronic Frontier Foundation (EFF) believes that encryption is a
necessary technological solution to protecting privacy and keeping
computer networks secure.  However, current U.S. export controls severely
restrict the dissemination of this technology.  Based on old Cold War
fears, encryption is highly regulated by the U.S. Departments of State and
Commerce, which refuse to license any secure encryption product for export
unless it utilizes key recovery, a government code word for giving
third-parties not originally intended to receive an electronic message the
ability to quickly and secretly decrypt the message, or translate it into
readable, unscrambled text. 

The results are debilitating for the software industry and communications,
like the Internet, telephones, and cell phones.  Because computer networks
like the Internet are international in scope, strong encryption cannot be
used to secure passwords, software products, and private messages, leaving
them virtually unprotected from those who would gain unauthorized access
or make unauthorized copies. 

As dangerous as the current export limitations are to companies and
individuals, mounting a challenge to this antiquated law has been
difficult.  The government has shielded itself from judicial scrutiny
through its power to control national security.  The export laws attempt
to preclude court challenges.

Facts of the Bernstein Case:

Daniel J. Bernstein was a Ph.D. student in Mathematics at the University
of California at Berkeley.  He wrote an encryption program, along with a
document describing the program, that he wanted to post on the Internet
for discussion and scrutiny by other cryptographers.  After asking the
State Department, Mr. Bernstein was informed that he would need a license
to be an arms dealer before he could post his encryption algorithm and
descriptive document to the sci.crypt (which stands for "science of
cryptography") newsgroup, and that if he applied for a license his request
would be denied because his algorithm was too secure.  In an EFF-sponsored
case, Mr. Bernstein sued several government agencies, including the
Commerce Department, which now oversees exportation of non-military
encryption products, claiming that the export control laws act as a prior
restraint on his constitutionally protected speech and are too overbroad
to serve their purpose of protecting national security.  This case was
filed in the federal district court for the Northern District of
California (and later amended to address attempts by the government to
shuffle encryption jurisidiction in a "shell game" intended to make the
case moot.)  The case was heard by District Judge Marilyn Hall Patel. 

Court Rulings:

Judge Patel has made several rulings in this case.  The first ruling
(Bernstein I, 922 F. Supp. 1426 (N.D. Cal. 1996)) was on April 15, 1996,
and was in response to the government's motion to dismiss the case for
lack of jurisdiction.  The court held that source code was speech
protected by the First Amendment, and the court therefore had
jurisdiction in the case.

The second ruling (Bernstein II, 945 F. Supp. 1279 (N.D. Cal. 1996)) was
on December 6, 1996, and was in response to Bernstein's motion for an
injunction so he could post materials to a Web site for the students in
his Spring 1997 cryptography course.  The court held that the export
control laws on encryption promulgated by the State Department were an
unconstitutional prior restraint on speech and that Bernstein could
publish for his class while the rest of the case was being decided.

The final ruling (Bernstein III) was on August 25, 1997, and held that
the restrictions on the publication on encryption were an
unconstitutional prior restraint on speech even as written under the new
Commerce Department regulations.  The court granted an injunction to
Professor Bernstein, forbidding the government from prosecuting him for
exporting Snuffle (the encryption program he wrote) or any other
encryption programs.  The court specifically stated that it could grant
a nationwide injunction against the enforcement of any encryption
restrictions against anyone.  However, the court declined to do this,
stating that it expected an appeal and wanted the most narrow holding it
could devise.

The court also held that allowing printed source code to be exported
undermined the government's claim that this export control scheme protects
any national security interest.  The court thought that distinguishing
print from electronic expression probably violates the First Amendment
under Reno v. ACLU (_U.S._ (1997), the "CDA case"), which held that
Internet speech deserves the same protections as printed speech.

Status Since the Trial Court Decisions:

In response to an emergency motion from the government on August 28,
1997, Judge Patel granted the government a partial stay and ruled that
most of the injunction of Bernstein III would be put on hold until the
9th Circuit Court of Appeals had a chance to review Professor
Bernstein's case.  However, part of the injunction remained in effect.
After September 8, 1997, Professor Bernstein would be free to publish
his Snuffle 5.0 software on the Internet without fear of prosecution.

On September 10, 1997, the government appealed the partial stay, arguing
to the 9th Circuit Court of Appeals that it would be so injurious to the
national security for Professor Bernstein to publish his Snuffle 5.0
software on the Internet, a complete stay of Judge Patel's injunction
was needed.  The government also proposed that the entire appeal be done
on an expedited basis.  On September 24, 1997, the 9th Circuit Court of
Appeals granted the government's stay and request for expedited appeal.
The court set a hearing date of December 8, 1997.

Current Status

The 9th Circuit Court of Appeals will be hearing oral arguments from
both sides on December 8, 1997.  The main issue before the Court is
whether the export control laws and regulations violate the First
Amendment.  The Government is arguing that if their *intent* is to
regulate something other than publication, they only need to show that
the rules are "narrowly tailored" to serve a "substantial government
interest."  The government argues that if it meets that test, it does
not have to worry about whether the regulations are a "prior restraint"
on publication.  Bernstein is arguing that what matters is whether the
government *actually* regulates publication (no matter what its supposed
"intent"), and that the government's export control regime is an
unconstitutional prior restraint on Bernstein's speech.

What this means is this:  Prior restraint on free speech is presumed
unconstitutional.  The government is arguing that they are not regulating
publication, only use.  If the government were regulating publication,
then the stricter prior restraints doctrine would apply.  If the
government were merely regulating use, then the reduced consititutional
protections would apply where the regulations simply must be "narrowly
tailored" and have a "substantial government interest".

Bernstein argues that encryption publication and use are one and the same
and therefore the regulations are an unconstitutional prior restraint on
free speech.


Subject: EFF Joins Internet Free Expression Alliance, Adds Filter Principles

For Immediate Release
December 1, 1997

Contact:	Electronic Frontier Foundation

		Shari Steele, Staff Attorney

		Stanton McCandlish, Program Director

Washington, DC -- The Electronic Frontier Foundation (EFF) announces its 
membership in the Internet Free Expression Alliance (IFEA), a new 
coalition determined to fight online censorship, including censorship 
imposed by poorly crafted labeling and filtering schemes.  EFF is 
committed to ensuring that any limitations on Internet speech uphold the 
values of privacy, security and freedom of expression.

To further this goal of protecting civil liberties online, EFF advances 
the following public interest principles with regard to rating, labelling
and filtering systems for online content:

1.  Each individual user should be aware of and have control over the 
personal information that is known about him or her by filtration 
providers.  (This does not include statistical or system data that cannot 
be linked back to the user.)

2.  No personal information about children online should be 
automatically made known to other users.

3.  Consumers should easily be able to determine the criteria that are
used by different filtering, rating and labeling systems.

4.  Users of filtration technologies should be notified whenever their 
web use is being monitored or recorded. (This includes children being
monitored by parents.)

5.  Parents and others setting up filtration technologies for themselves
or their children must have the final say about what information should or
should not be filtered. 

6.  Since there are undoubtedly going to be mistakes made with respect 
to filtering, rating and labeling decisions, there must be efficient 
avenues available for people who feel that they have been mislabeled, 
inappropriately blocked, or otherwise treated unjustly.

7.  A filtering service or product should not alter the content of a site
(e.g. by changing how it is displayed in a web browser) unless the user is
aware of and desires the alteration.

8.  No rating or labeling system developed should place an unduly heavy 
burden on individual creators of online information.

9.  Those who would legislate regarding filtering, rating and labeling
systems should recognize that many communities of varying cultural mores
and standards exist. 

10.  Developers of filtering technologies should recognize that their 
products may be used by a governmental body to censor what its populace 
sees.  The goal of ease of use should never take precedence over the 
protection of the rights of individuals in any nation to access 
information online.

These principles are a summary of a more detailed policy position and
principles, at:

"The Internet is an amazing medium for finding all kinds of speech, 
whether it be about the Mars space missions or breast cancer," explained
EFF Staff Attorney Shari Steele.  "While some speech may be 
inappropriate for children, particularly young children, that same 
speech may be constitutionally protected for adults.  In our zeal to 
protect our children from accessing adult materials, we must be careful 
not to jeopardize the basic rights of adults to speak freely online."

The Internet Free Expression Alliance is opposed to the adoption of 
techniques that could limit the vibrancy and openness of the Internet as 
a communications medium.  Other members of IFEA include the American 
Civil Liberties Union, National Writers Union, American Society of 
Newspaper Editors, Electronic Privacy Information Center, Computer 
Professionals for Social Responsibility, Institute for Global 
Communications, First Amendment Project, Feminists for Free Expression, 
Journalism Education Association, National Campaign for Freedom of 
Expression, National Coalition Against Censorship, NetAction, Peacefire, 
z publishing, Bolt Reporter, Boston Coalition for Freedom of Expression, 
International Periodical Distributors Association, National Association 
of Artists Organizations, Publishers Marketing Association, and Society 
of Professional Journalists.  

Information about the Internet Free Expression Alliance can be found at:

The Electronic Frontier Foundation (EFF) is a nonprofit public interest 
organization devoted to the protection of online privacy and free 
expression.  EFF was founded in 1990 and is based in San Francisco, 
California.  EFF maintains an extensive archive of information on 
privacy and free speech at:


Subject: EFF Advises FCC, "No Internet/Computer V-Chip"

Shari Steele, Staff Attorney
					Electronic Frontier Foundation
					1550 Bryant Street, Suite 725
					San Francisco, CA  941103

Before the
Washington, DC  20554

In the Matter of
Technical Requirements to Enable Blocking
of Video Programming Based on Program Ratings
Implementation of Sections 551(c), (d) and
(e) of the Telecommunications Act of 1996

ET Docket No. 97-206

Sent via e-mail and Fed-Ex

Dear Commissioners,

The Electronic Frontier Foundation is writing to express our concern 
with the current Notice of Proposed Rulemaking regarding the 
implementation of Sections 551(c), (d) and (e) of the Telecommunications 
Act of 1996.  The Electronic Frontier Foundation (EFF) is a privately 
funded, nonprofit organization concerned with protecting civil liberties 
and promoting responsible behavior in the electronic world.  Our 
founders include Mitchell Kapor, a leading pioneer in software 
development who was the first CEO of the Lotus Development Corporation 
and developed the Lotus 1-2-3 Spreadsheet software; John Perry Barlow, a 
writer and computer enthusiast who frequently comments on the social 
implications of Cyberspace communications; and John Gilmore, a 
cryptography expert and one of the original founders of Sun 

EFF is troubled particularly with paragraph 22 of the Proposed 
Rulemaking, which goes to the regulation of personal computers as 
television receivers.  We are concerned that through this paragraph, the 
FCC is paving the way for serious regulation of Internet content.  
Congress did not intend such an outcome when it passed the 
Telecommunications Act of 1996, and the FCC should avoid expanding its 
authority to include the Internet.  As the Supreme Court noted earlier 
this year in ACLU v. Reno:

"The Government estimates that _[a]s many as 40 million people use the 
Internet today, and that figure is expected to grow to 200 million by 
1999._  This dynamic, multifaceted category of communication includes 
not only traditional print and news services, but also audio, video, and 
still images, as well as interactive, real-time dialogue. . . . As a 
matter of constitutional tradition, in the absence of evidence to the 
contrary, we presume that governmental regulation of the content of 
speech is more likely to interfere with the free exchange of ideas than 
to encourage it." (emphasis added)

The FCC Proposes to Do More than the Telecommunications Act Requires

The Telecommunications Act of 1996 calls on the television industry to 
set up a voluntary rating system for television broadcasts and requires 
all television sets manufactured after February 1998 to include 
"features designed to enable viewers to block display of all programs 
with a common rating."  The V-chip scheme, consisting of these voluntary 
ratings and the hardware to read them, was designed to let parents block 
TV content for TV shows with movie-like ratings, such as PG-14.  When 
Congress passed the Telecommunications Act, it ordered that "as new 
video technology is developed, the Commission shall take such action as 
the Commission determines appropriate to ensure that blocking service 
continues to be available to consumers."

In its proposed rulemaking, however, the FCC goes beyond the requirement 
that television sets be built with V-chips.  Instead, the FCC states:  
"[P]ersonal computer systems, which are not traditionally thought of as 
television receivers, are already being sold with the capability to view 
television and other video programming. . . . Accordingly, we believe 
that the program blocking requirements we are proposing should apply to 
any television receiver meeting the screen size requirements, regardless 
of whether it is designed to receive video programming that is 
distributed only through cable television systems, MDS, DBS, or by some 
other distribution system."

It is this last phrase, "or by some other distribution system," that 
causes EFF the most concern.  There is much video that is transmitted 
over the Internet that is not "broadcast" in the traditional sense of 
the word.  For example, more and more Internet Web sites are including 
online video-streaming devices and other video multimedia.  Would 
producers of Internet video feeds, particularly as they increase in 
quality and reach the programming sophistication of traditional 
television, be required to participate in the V-chip rating and 
filtering schemes?  Applying the V-chip regulations to these new video 
technologies would be beyond the scope of what Congress mandated in its 
1996 enabling legislation.

Expanding the V-Chip Requirements to the Internet Is Bad Policy and Is 

Not only would a requirement on Internet video producers to self-rate 
and participate in a V-chip filtering system be beyond the scope of what 
Congress intended, it would be bad public policy and would be 
unconstitutional.  There has been much debate about filtering and rating 
systems for the Internet since the Supreme Court held the Communications 
Decency Act to be unconstitutional last year.  EFF is opposed to 
Internet ratings schemes, in that identifying children online is 
difficult if not impossible, so current schemes restrict access and 
block content from the view of adults.  Furthermore, current Internet 
rating and filtering schemes, which are far more developed and 
sophisticated than the V-chip scheme, are far too subjective and 

The Internet is a powerful and positive forum for free expression.  It 
is the place where "any person can become a town crier with a voice that 
resonates farther than it could from any soapbox," as the U.S. Supreme 
Court recently observed in ACLU v. Reno.  EFF opposes the adoption of 
any techniques and standards that could limit the vibrancy and openness 
of the Internet as a communications medium.  Content filtering 
techniques already have been implemented in ways inconsistent with free 
speech principles, impeding the ability of Internet users to publish and 
receive constitutionally protected free expression.

The Clinton Administration has been pushing net content providers to 
adopt systems similar to V-chips that filter rated sites via Web 
browsers in the interest of deterring young surfers from viewing adult 
materials.  EFF opposes net rating systems and fears that eventually 
they will be mandated.  The proposed V-chip requirements, if expanded to 
include personal computers, seem to be moving us closer to that 

With the Convergence of Technologies, Internet Speech Must Not Be 
Limited to Only What Is Fit for Broadcast

As communications technologies converge, we must be careful not to limit 
all speech to that which is acceptable on the most restricted medium.  
The current limitations on broadcast television are based on the 1950s 
model of TV.  Yet these limitations have been expanded to include cable 
television and then DBS satellites.  Ironically, as the sophistication 
of our technologies for communication expand, our First Amendment rights 
contract.  As Washington, DC, attorney Bob Corn-Revere has commented, 
"It's a difficulty that historically has arisen with technological 

But the Supreme Court specifically held that the broadcast limitations 
on free speech rights are not to be expanded to the Internet.  "Neither 
before nor after the enactment of the CDA have the vast democratic fora 
of the Internet been subject to the type of government supervision and 
regulation that has attended the broadcast industry.  Moreover, the 
Internet is not as "invasive' as radio or television."  The Supreme 
Court noted that Internet content should be treated like written speech, 
making any rating-and-blocking scheme suspect.

V-Chip Requirements Themselves Are Too Vague to Be Useful for Internet 

Our comments have focused on the problems with expanding the V-chip 
rating scheme to Internet communications.  While we believe it to be 
beyond the scope of our most pressing concern, we feel it is worth 
mentioning that there are additional problems with the V-chip rating 
scheme itself that pose difficulties to potential users.  For example, 
the definitions of violent or offensive programming are not specific 
enough to be particularly useful in rating Internet broadcasts.

For these reasons, the Electronic Frontier Foundation respectfully asks 
that the FCC change paragraph 22 of its proposed rulemaking to eliminate 
all ambiguities and formally state its intentions to avoid requiring 
V-chips for computers or Internet communications.  Computers are not 
television sets, even if they can display video.  Computers hooked into 
the Internet are not TV-watching apparatuses, and video on the Internet 
is not broadcast television.  The Internet and broadcast television 
should not be thrown into the same category when it comes to the V-chip 
and ratings.

Thank you in advance for your consideration of our concerns.  We would 
be pleased to provide the FCC with any further information that may be 


Shari Steele, Staff Attorney
Electronic Frontier Foundation	    
P.O. Box 649			    
Bryans Road, MD  20616


Subject: Quote of the Day

"We accept the risk that words and ideas have wings we cannot clip and
which carry them we know not where."
  - US Ninth Circuit Court of Appeals, in free speech case Winter v.
    G.P. Putnam's Sons (938 F.2d at 1035), 1991.

Find yourself wondering if your privacy and freedom of speech are safe 
when bills to censor the Internet are swimming about in a sea of of 
surveillance legislation and anti-terrorism hysteria?  Worried that in 
the rush to make us secure from ourselves that our government 
representatives may deprive us of our essential civil liberties? 
Concerned that legislative efforts nominally to "protect children" will 
actually censor all communications down to only content suitable for 
the playground?  Alarmed by commercial and religious organizations abusing
the judicial and legislative processes to stifle satire, dissent and 

Join EFF! (or send an inquiry to

You *know* privacy, freedom of speech and ability to make your voice heard
in government are important. You have probably participated in our online
campaigns and forums.  Have you become a member of EFF yet?  The best way
to protect your online rights is to be fully informed and to make your
opinions heard.  EFF members are informed and are making a difference.
Join EFF today!



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