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EFFector - Volume 9, Issue 9 - Bernstein Files for Partial Summary Judgment in Crypto Case


EFFector - Volume 9, Issue 9 - Bernstein Files for Partial Summary Judgment in Crypto Case

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EFFector Online Volume 09 No. 09      July 25, 1996
A Publication of the Electronic Frontier Foundation        ISSN 1062-9424


Bernstein Files for Partial Summary Judgment in Crypto Case
Internet Society's Strong Encryption Policy Statement
 EFF/EFC Toronto Benefit Concert Wrap-up
Upcoming Events
Quote of the Day
What YOU Can Do

* See or, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *


Subject: Bernstein to File for Partial Summary Judgment in Crypto Case


              Claims Government's Restrictions on Export 
           of Cryptographic Speech Violates First Amendment

July 26, 1996  				     Electronic Frontier Foundation 

                                              Shari Steele, Staff Counsel

                                              Mike Godwin, Staff Counsel

                                              Lori Fena, Executive Director

San Francisco, CA -- A University of Illinois at Chicago faculty member
who is suing the U.S. Department of State will file a motion Friday that
could strengthen his claim that government restrictions on information
about cryptography violate the First Amendment's protections for freedom
of speech. 

Relying on Judge Marilyn Hall Patel's prior ruling that computer source
code is speech protected by the First Amendment, mathematician Daniel J.
Bernstein will file a motion for partial summary judgment in his suit
against the State Department. 

In his 45-page memorandum in support of his motion, Bernstein sets forth
several First Amendment arguments: 


*       Any legal framework that requires a license for First Amendment
protected speech, which may be granted or withheld at the discretion of a
government official, is a prior restraint on speech.  In order for this
framework to be acceptable, the government has the burden of showing that
publication will "surely result in direct, immediate, and irreparable
damage to our Nation or its people" and that the regulation at issue is
necessary to prevent this damage.  The government has not met this burden
regarding the ITAR legal framework. 

*       Because restrictions on speech about cryptography are
content-based, the court must apply a strict scrutiny test in determining
whether individuals can be punished for engaging in this speech.  A strict
scrutiny test requires that a regulation be necessary to serve a
compelling state interest and that it is narrowly drawn to achieve that
end.  The ITAR regulatory scheme has adopted the *most* restrictive
approach by prohibiting all speech in the area of cryptography. 

*       The ITAR regulatory framework lacks the necessary procedural
safeguards.  Grants of administrative discretion must be limited by clear
standards, and judicial review must be available.  "Quite simply, the ITAR
Scheme allows its administrative agencies to make inconsistent, incorrect
and sometimes incomprehensible decisions censoring speech, all without the
protections of judicial review or oversight." 

*       The ITAR framework is unconstitutionally vague.  The government
doesn't even seem to know what its regulations include and exclude!  Here,
the lack of standards has allowed the government to misuse a statute aimed
at commercial, military arms sales to limit academic and scientific

*       The ITAR regulatory scheme is overbroad.  In an internal memo
written almost 20 years ago, the government's own Office of Legal Counsel
concluded that the ITAR s licensing standards "are not sufficiently
precise to guard against arbitrary and inconsistent administrative
action."  The OLC specifically warned that the coverage was so broad it
could apply to "communication of unclassified information by a technical
lecturer at a university or to the conversation of a United States
engineer who meets with foreign friends at home to discuss matters of
theoretical interest."  This is exactly what is happening here, and it is


While a graduate student at the University of California at Berkeley,
Bernstein completed the development of an encryption equation (an
"algorithm") he calls "Snuffle." Bernstein wishes to publish a) the
algorithm, (b) a mathematical paper describing and explaining the
algorithm, and (c) the "source code" for a computer program that
incorporates the algorithm. Bernstein also wishes to discuss these items
at mathematical conferences, college classrooms and other open, public
meetings.  The Arms Export Control Act and the International Traffic in
Arms Regulations (the ITAR regulatory scheme) required Bernstein to submit
his ideas about cryptography to the government for review, to register as
an arms dealer, and to apply for and obtain from the government a license
to publish his ideas.  Failure to do so would result in severe civil and
criminal penalties.  Bernstein believes this is a violation of his First
Amendment rights and has sued the government. 

In the first phase of this litigation, the government argued that since
Bernstein's ideas were expressed, in part, in source code, they were not
protected by the First Amendment.  On April 15, 1996, Judge Marilyn Hall
Patel in the Northern District of California rejected that argument and
held for the first time that computer source code is protected speech for
purposes of the First Amendment. 

Because of its far-reaching implications, the Bernstein case is being
watched closely by privacy advocates, the computer industry, the export
and cryptography communities, and First Amendment activists.  In fact,
several members of these communities provided declarations that were
submitted in support of Bernstein's motion. 


Lead counsel on the case is Cindy Cohn of the San Mateo law firm of
McGlashan & Sarrail, who is offering her services pro bono.  Major
additional pro bono legal assistance is being provided by Lee Tien of
Berkeley; M. Edward Ross of the San Francisco law firm of Steefel, Levitt
& Weiss; and James Wheaton and Elizabeth Pritzker of the First Amendment
Project in Oakland. 


The Electronic Frontier Foundation (EFF) is a non-profit 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 Bernstein legal team, and helped collect
members of the academic community and computer industry to support this

Full text of the lawsuit and other paperwork filed in the case is
available from EFF's online archives: , /pub/Privacy/ITAR_export/Bernstein_case/, 1/Privacy/ITAR_export/Bernstein_case


Subject:Internet Society's Strong Encryption Policy Statement

IAB and IESG (divisions of the Internet Society) issued this statement on  
US encryption policy, yesterday, linking Internet standards bodies' 
positions on this crucial issue to those of civil libertarians and online 
businesses, in a strong front against Clinton administration key "escrow" 
proposals and unconstitutional restrictions on encryption export.


July 24, 1996

The Internet Architecture Board (IAB) and the Internet Engineering
Steering Group (IESG), the bodies which oversee architecture and
standards for the Internet, are concerned by the need for increased
protection of international commercial transactions on the Internet,
and by the need to offer all Internet users an adequate degree of

Security mechanisms being developed in the Internet Engineering
Task Force to meet these needs require and depend on the international
use of adequate cryptographic technology.  Ready access to such
technology is therefore a key factor in the future growth of the
Internet as a motor for international commerce and communication.

The IAB and IESG are therefore disturbed to note that various
governments have actual or proposed policies on access to cryptographic
technology that either:
(a) impose restrictions by implementing export controls; and/or
(b) restrict commercial and private users to weak and inadequate
mechanisms such as short cryptographic keys; and/or
(c) mandate that private decryption keys should be in the hands of
the government or of some other third party; and/or
(d) prohibit the use of cryptology entirely, or permit it only
to specially authorized organizations.

We believe that such policies are against the interests of consumers
and the business community, are largely irrelevant to issues of
military security, and provide only a marginal or illusory benefit
to law enforcement agencies, as discussed below.

The IAB and IESG would like to  encourage policies that allow ready
access to uniform strong cryptographic technology for all Internet
users in all countries.

The IAB and IESG claim:

The Internet is becoming the predominant vehicle for electronic
commerce and information exchange. It is essential that the support
structure for these activities can be trusted.

Encryption is not a secret technology monopolized by any one country,
such that export controls can hope to contain its deployment. Any
hobbyist can program a PC to do powerful encryption. Many algorithms
are well documented, some with source code available in textbooks.

Export controls on encryption place companies in that country at
a competitive disadvantage. Their competitors from countries without
export restrictions can sell systems whose only design constraint
is being secure, and easy to use.

Usage controls on encryption will also place companies in that
country at a competitive disadvantage because these companies cannot
securely and easily engage in electronic commerce.

Escrow mechanisms inevitably weaken the security of the overall
cryptographic system, by creating new points of vulnerability that
can and will be attacked.

Export controls and usage controls are slowing the deployment of
security at the same time as the Internet is exponentially increasing
in size and attackers are increasing in sophistication. This puts
users in a dangerous position as they are forced to rely on insecure
electronic communication.



It is not acceptable to restrict the use or export of cryptosystems
based on their key size.  Systems that are breakable by one country
will be breakable  by others, possibly unfriendly ones.  Large
corporations and even criminal enterprises have the resources to
break many cryptosystems.  Furthermore, conversations often need
to be protected for years to come; as computers increase in speed,
key sizes that were once out of reach of cryptanalysis will become


Use of public key cryptography often requires the existence of a
"certification authority".  That is, some third party must sign a
string containing the user's identity and public key.  In turn,
the third party's key is often signed by a higher-level certification

Such a structure is legitimate and necessary.  Indeed, many
governments will and should run their own CAs, if only to protect
citizens' transactions with their governments.  But certification
authorities should not be confused with escrow centers.  Escrow
centers are repositories for private keys, while certification
authorities deal with public keys. Indeed, sound cryptographic
practice dictates that users never reveal their private keys to
anyone, even the certification authority.


The security of a modern cryptosystem rests entirely on the secrecy
of the keys.  Accordingly, it is a major principle of system design
that to the extent possible, secret keys should never leave their
user's secure environment.  Key escrow implies that keys must be
disclosed in some fashion, a flat-out contradiction of this principle.
Any such disclosure weakens the total security of the system.


Sometimes escrow systems are touted as being good for the customer
because they allow data recovery in the case of lost keys. However,
it should be up to the customer to decide whether they would prefer
the more secure system in which lost keys mean lost data, or one
in which keys are escrowed to be recovered when necessary.  Similarly,
keys used only for conversations (as opposed to file storage) need
never be escrowed.  And a system in which the secret key is stored
by a government and not by the data owner is certainly not practical
for data recovery.


Keys used for signatures and authentication must never be escrowed.
Any third party with access to such keys could impersonate the
legitimate owner, creating new opportunities for fraud and deceit.
Indeed, a user who wished to repudiate a transaction could claim
that his or her escrowed key was used, putting the onus on that
party.  If a government escrowed the keys, a defendant could claim
that the evidence had been forged by the government, thereby making
prosecution much more difficult.  For electronic commerce,
non-repudiation is one of the most important uses for cryptography;
and non-repudiation depends on the assumption that only the user
has access to the private key.


In some cases, it is technically feasible to use cryptographic operations
that do not involve secrecy.  While this may suffice in some cases, much
of the existing technical and commercial infrastructure cannot be
protected in this way.  For example, conventional passwords, credit
card numbers, and the like must be protected by strong encryption,
even though some day more sophisticated techniques may replace them.
Encryption can be added on quite easily; wholesale changes to diverse
systems cannot.


Conflicting restrictions on encryption often force an international
company to use a weak encryption system, in order to satisfy legal
requirements in two or more different countries.  Ironically, in
such cases either nation might consider the other an adversary
against whom commercial enterprises should use strong cryptography.
Clearly, key escrow is not a suitable compromise, since neither
country would want to disclose keys to the other.


Even if escrowed encryption schemes are used, there is nothing to
prevent someone from using another encryption scheme first.  Certainly,
any serious malefactors would do this; the outer encryption layer,
which would use an escrowed scheme, would be used to divert suspicion.


A major threat to users of cryptographic systems is the theft of
long-term keys (perhaps by a hacker), either before or after a
sensitive conversation.  To counter this threat, schemes with
"perfect forward secrecy" are often employed.  If PFS is used, the
attacker must be in control of the machine during the actual
conversation.  But PFS is generally incompatible with schemes
involving escrow of private keys.  (This is an oversimplification,
but a full analysis would be too lengthy for this document.)


As more and more companies connect to the Internet, and as more and
more commerce takes place there, security is becoming more and more
critical.  Cryptography is the most powerful single tool that users
can use to secure the Internet. Knowingly making that tool weaker
threatens their ability to do so, and has no proven benefit.


The Internet Architecture Board is described at

The Internet Engineering Task Force and the Internet Engineering
Steering Group are described at

(C) Internet Society 1996. Reproduction or translation of the
complete document, but not of extracts, including this notice,
is freely permitted.



Subject: NewsNybbles

* EFF/EFC Toronto Benefit Concert Wrap-up

The Eden MusicFest, a benefit concert (produced by ICONcerts) for the 
Electronic Frontier  Foundation and it's Canadian sister organization, 
Electronic Frontier Canada, recently gathered more than 50,000 fans of 
modern rock music for a weekend camping adventure at the Mosport 
International Speedway, in Ontario, Canada.

Set in rural farmland an hour east of Toronto, the festival staged over 40
bands in a three day period, July 12-14, 1996, and featured headliners 
such as the Cure, the Tragically Hip, Live, Porno For Pyros and Love and 
Rockets. Music began about noon each day and continued on each of two 
stages until close to midnight. A Netcast of the concert weekend was 
produced by MediaCast and included live feeds from the main stage, 
interviews with band members and discussions with attendant notables 
such as EFF Executive Director Lori Fena, via Xing StreamWorks, 
RealAudio, IChat, and other Internet innovations.

"Music forums are one of the online "killer apps" most at 
risk when governments pass overly-board Internet censorship laws.  
Eden MusicFest was a great venue for celebrating free-speech online and 
raising awareness of the threats to our rights," said Fena.

EFF's own Dennis Derryberry had virtual centerstage between main acts, 
performing an acoustic guitar-backed original song about EFF-related 
issues, for the cybercast and the giant twin screens on either side of 
the main stage.

EFF's and EF-Canada's presence in the Internet Expo tent attracted the
interest of many wishing to decorate themselves with a free temporary 
tattoo. The tattoos bore the blue ribbon--a symbol employed in recent 
months to promote the free expression of ideas online around the world, 
and a protest the Communications Decency Act and similar government 
Net censorship proposals in other countries. 

Two trailers were set up adjacent to our tent with Internet connections 
and Compaq terminals, allowing Internet rookies to sample the online 
world, and where veteran Netizens could be found checking their email 
every few hours. Across the pavilion from our booth, passers-by stopped to 
play a few chords at the Gibson Entertainment booth, where more than 20 
guitars glimmered atop a table, with demonstration effects racks poised
for the many music fans experiencing stage envy. 

After the event, all at EFF agreed that the weekend was a success not 
only as a benefit event, but from the perspective of having made 
contacts within the music and entertainment world who are sympathetic to 
EFF's mission to protect free speech online. Many band members wore EFF 
t-shirts[*] and pins during their performances, while others took time to 
talk about civil liberties concerns on the cybercast (and, between 
bands, on the stage's side screens).

The simple fact that an event of this magnitude can be organized this 
quickly around issues of privacy and free speech on the Internet sends a 
clear message - these concerns are not a special interest to be swept aside, 
but are now a mainstream interest, a sizeable blip on the voting public's 
radar. It bodes well for all of us. This a very big first step in taking 
the "cyberliberty" message to general public, and preaching beyond the 
online "choir".

For those of you who missed the Netcast of the festival, visit 
MediaCast's archives at where you'll find many 
pictures, reports and other information about the happenings at Eden 
Music Festival.

Lastly, we'd like to thank the sponsors of the event, and those who organized
and staffed the event for making it all happen, as well as EF-Canada's 
and our own wonderful volunteers for helping run the info booth.

[* Note: if you have ordered an EFF t-shirt and have not received it, do 
not be alarmed at this fact. The shirts arrived shortly before the 
festival, and are now being sent to those of you who are on a back-order 
list. Thanks for your patience.]


Upcoming Events

This schedule lists EFF events, and those we feel might be of interest to
our members.  EFF events (those sponsored by us or featuring an EFF speaker)
are marked with a "*" instead of a "-" after the date.  Simlarly, government
events (such as deadlines for comments on reports or testimony submission,
or conferences at which government representatives are speaking) are marked
with "!" in place of the "-" ("!?" means a govt. speaker may appear, but
we don't know for certain yet.)  And likewise, "+" in place of "-"
indicates a non-USA event.  If it's a foreign EFF event with govt. people,
it'll be "*!+" instead of "-".  You get the idea.

The latest version of the full EFF calendar is available from:

ftp:, /pub/EFF/calendar.eff
gopher:, 1/EFF, calendar.eff

See also our new Now-Up-to-Date HTML calendar at:

July 27-
     31 + "Realigning Your Organization to Learning in the Information
          Age," sponsored by On the Horizon and the University of North
          Carolina School of Education. The University of Edinburgh,
          Edinburgh, Scotland.
          Contact: James Morrison
          Phone: +1 919 962 2517
          Fax: +1 919 962 1533

July 28-
     30 * Spotlight: an Executive Conference Directing the Future of
          Multimedia; discussion of critical issues facing interactive
          media industry; EFF Executive Director Lori Fena will speak;
          Ritz-Carlton, Laguna Niguel, CA.
          Tel: 415 312 0687

July 28-
     31 ! The Forum of Incident Response and Security Teams's 8th
          Conference and Workshop on Computer Security Incident Handling and
          Response; Santa Clara, CA

Aug. 5- * Progress and Freedom Foundation; annual summit held in Aspen,
     6    Colorado, will feature EFF Chairman Esther Dyson, Alvin Toffler
          and Congressman Rick White and Senator Bill Bradley; "An
          exploration of the Electronic Frontier's impact on American
          Info: +1 202 289 8928   Email to:

Aug. 5-
     9 +  International Conference on Computational Linguistics;
          University of Copenhagen, Copenhagen, Denmark.

Aug. 8  - Registration deadline for SAB96, Sep. 9, 1996.

Aug. 8-
     10 - Conference on Computing and Philosophy; Carnegie Mellon
          University, Pittsburgh, PA. Deadline for submissions: Feb. 19.
          Contact: +1 412 268 7643

Aug. 14-
     16 + Information Seeking in Context: an International Conference on
          Information Needs, Seeking and Use in Different Contexts; Tampere,
          Finland.  Deadline for submission of abstracts: October 15, 1995.
          Contact: +358 31 215 7039 (voice), +358 31 215 6560 (fax)

Aug. 14-
     17 - 7th Macintosh Summit Conference; learn the latest tips, tricks
          and techniques of the Mac platform from the Mac giants.
          University of California, Santa Barbara.
          Contact: Fati Erdogan
          Tel: 805 893 2811
          Fax: 805 893 4943

Aug. 21-
     23 + China-U.S. Meeting on Global Information Access: Challenges and
          Opportunities; Beijing, China.

Aug. 26 - ACM SIGCOMM '96: Applications, Technologies, Architectures and
          Protocols for Computer Communication; Stanford University,
          Stanford, CA


Subject: Quote of the Day

"The Singapore government isn't interested in controlling information,
but wants a gradual phase-in of services to protect ourselves. It's not
to control, but to protect the citizens of Singapore. In our society,
you can state your views, but they have to be correct."
  - Ernie Hai, coordinator of the Singapore Government Internet Project

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 any message to

Even if you don't live in the U.S., the anti-Internet hysteria will soon 
be visiting a legislative body near you.  If it hasn't already.


Subject: What YOU Can Do

* The Communications Decency Act & Other Censorship Legislation

The Communications Decency Act and similar legislation pose serious 
threats to freedom of expression online, and to the livelihoods of system 
operators.  The legislation also undermines several crucial privacy 

Business/industry persons concerned should alert their corporate govt.
affairs office and/or legal counsel.  Everyone should write to their own
Representatives and Senators, letting them know that such abuses of 
public trust will not be tolerated, that legislators who vote against
your free speech rights will be voted against by you in the next elections.

Join in the Blue Ribbon Campaign - see


Support the EFF Cyberspace Legal Defense Fund:

For more information on what you can do to help stop this and other 
dangerous legislation, see:, /pub/Alerts/, 1/Alerts

If you do not have full internet access (e.g. WWW), send your request
for information to

censorious legislation is turning up at the US state and non-US 
national levels.  Don't let it sneak by you - or by the online activism 
community. Without locals on the look out, it's very difficult for the 
Net civil liberties community to keep track of what's happening locally 
as well as globally.

* New Crypto-Privacy Legislation

Urge your Represenatitives to support the Pro-CODE crypto export bill 
(and to fix the few remaining bugs in it).  

For years US export controls on encryption have hampered the development
of secure communications online. This technology is vital for online 
commerce, for national security, and for YOUR electronic privacy.

The new Pro-CODE legislation will go a long way to rectifying the situation.

Join in the Golden Key Campaign - see


Support the EFF Cyberspace Legal Defense Fund:

See also:
for more info.

* Digital Telephony/Comms. Assistance to Law Enforcement Act

The FBI has been seeking both funding for the DT/CALEA wiretapping 
provisions, and preparing to require that staggering numbers of citizens be 
simultaneously wiretappable.  

To oppose the funding, write to your own Senators and Representatives 
urging them to vote against any appropriations for wiretapping. 

We are aware of no major action on this threat at present, but keep your
eyes peeled. It will be back.

See for more info.

* Anti-Terrorism Bills

Several bills threatening your privacy and free speech have been introduced
recently.  One passed, but none of the rest of them are close to passage at 
this very moment - however, this status may change. Urge your 
Congresspersons to oppose these unconstitutional and Big-Brotherish 
bills, which threaten freedom of association, free press, free speech, 
and privacy. One such bill passed a few weeks ago, stripped of some of the 
more onerous provisions.  It could have been worse, and could yet still 
be worse.

Keep up the pressure. Write to your legislators: No 
secret trials and deportations, no expansion of wiretapping scope or 
authority, no national or "smart-card" ID systems!

For more information on some of this legislation, see

* Medical Privacy Legislation

Several bills relating to medical privacy issues are floating in Congress 
right now. Urge your legislators to support only proposals that *truly* 
enhance the medical privacy of citizens.

More information on this legislation will be available at soon.  Bug to make 
it appear there faster. :)

* Child Privacy Legislation

A new bill to protect children from unethical marketing practices (e.g. 
tricking kids into revealing personal information by offering prizes or 
games) has been introduced.  EFF and other civil liberties organizations
like, and dislike, various points in this bill.  The legislators 
sponsoring the bill appear interested in resolving the problems in the 
statutory language they have proposed.  

* Find Out Who Your Congresspersons Are

Writing letters to, faxing, and phoning your representatives in Congress
is one very important strategy of activism, and an essential way of
making sure YOUR voice is heard on vital issues.

EFF has lists of the Senate and House with contact information, as well
as lists of Congressional committees. These lists are available at:, /pub/Activism/Congress_cmtes/, 1/EFF/Issues/Activism/Congress_cmtes

The full Senate and House lists are senate.list and hr.list, respectively.
Those not in the U.S. should seek out similar information about their
own legislative bodies.  EFF will be happy to archive any such
information provided to us, so pass it on!

If you are having difficulty determining who your US legislators are,
try contacting your local League of Women Voters, who maintain a great 
deal of legislator information, or consult the free ZIPPER service
that matches Zip Codes to Congressional districts with about 85%
accuracy at:

Computer Currents Interactive has provided Congress contact info, sorted 
by who voted for and against the Communcations Decency Act:

* Join EFF!

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!

For EFF membership info, send queries to, or send any
message to for basic EFF info, and a membership form.



EFFector Online is published by:

The Electronic Frontier Foundation
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San Francisco CA 94103 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
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Editor: Stanton McCandlish, Online Activist, Webmaster (

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