Professor Asks for Constitutional Review of New Encryption Regs
Electronic Frontier Foundation Contacts:
Shari Steele, Staff Attorney
+1 301 375 8856, firstname.lastname@example.org
John Gilmore, Founding Board Member
+1 415 221 6524, email@example.com
Cindy Cohn, McGlashan & Sarrail
+1 415 341 2585, firstname.lastname@example.org
San Francisco - Laywers for Professor Dan Bernstein today asked the
Government to delay enforcement of new encryption restrictions until
they can be reviewed by a court for Constitutionality. The new
regulations contain the same features struck down earlier this month
by Judge Marilyn Hall Patel.
"The government apparently decided to ignore Judge Patel's findings.",
said Cindy Cohn, lead attorney in the case. "Instead of listening
to Judge Patel's analysis and attempting to fix the regulations, they
simply issued new ones with the same problems. We are giving them a
a chance to fix this before we bring the issue up in court."
President Clinton ordered on November 15 that the regulations be moved
from the State Department to the Commerce Department. Judge Patel's
decision of December 6 (released December 16th) struck down the State
Department regulations as a "paradigm of standardless discretion" that
required Americans to get licenses from the government to publish
information and software about encryption. Over Christmas, the
Clinton Administration published its new Commerce Department
regulations, containing all the same problems, and put them into
immediate effect today.
The new regulations once again put Professor Bernstein at risk of
prosecution for teaching a class on encryption and publishing his
class materials on the Internet. His class begins on January 13 at
the University of Illinois at Chicago.
Professor Bernstein's letter of today proposes that the Government
agree to delay enforcement of the new regulations while Judge Patel
reviews them for Constitutionality. Failing that, Professor Bernstein
will ask the court for a temporary restraining order to block
"The government is forcing us to go back to Judge Patel again to have
the new regulations declared facially unconstitutional." said Ms.
Cohn. "This time we believe that a nationwide injunction against
their enforcement is merited."
"The new encryption rules are a pointless shell game," said John
Gilmore, co-founder of the Electronic Frontier Foundation, which
backed the suit. "Industry and Congress had asked that the draconian
State Department regulations be eliminated in favor of existing,
reasonable, Commerce Department regulations. Judge Patel invalidated
the State Department regulations because they were draconian. Rather
than address the concerns of either, President Clinton moved the
draconian regulations into the Commerce Department -- and made them
tougher in the process. It's his political decision whether to ignore
and anger industry leaders, but he can't ignore a federal district
Civil libertarians have long argued that encryption should be widely
deployed on the Internet and throughout society to protect privacy,
prove the authenticity of transactions, and improve computer security.
Industry has argued that the restrictions hobble them in building
secure products, both for U.S. and worldwide use, risking America's
current dominant position in computer and communications technology.
Government officials in the FBI and NSA argue that the technology is
too dangerous to permit citizens to use it, because it provides privacy
to criminals as well as ordinary citizens.
Background on the case
The plaintiff in the case, Daniel J. Bernstein, Research Assistant
Professor at the University of Illinois at Chicago, developed an
"encryption algorithm" (a recipe or set of instructions) that he
wanted to publish in printed journals as well as on the Internet.
Bernstein sued the government, claiming that the government's
requirements that he register as an arms dealer and seek government
permission before publication was a violation of his First Amendment
right of free speech. This was required by the Arms Export Control
Act and its implementing regulations, the International Traffic in
Arms Regulations. The new regulations have the same effect, using the
International Emergency Economic Powers Act, the Export Administration
Regulations, and a "state of national emergency" that President
Clinton declared in 1994 and has re-declared annually.
In the first phase of this litigation, the government argued that
since Bernstein's ideas were expressed, in part, in computer language
(source code), they were not protected by the First Amendment. On
April 15, 1996, Judge Patel rejected that argument and held for the
first time that computer source code is protected speech for purposes
of the First Amendment.
On December 6, Judge Patel ruled that the Arms Export Control Act is a
prior restraint on speech, because it requires Bernstein to apply for
and obtain from the government a license to publish his ideas. Using
the Pentagon Papers case as precedent, she ruled that the government's
"interest of national security alone does not justify a prior
Judge Patel also held that the government's required licensing
procedure fails to provide adequate procedural safeguards. When the
Government acts legally to suppress protected speech, it must reduce
the chance of illegal censorship by the bureacrats involved -- in this
case, the State Department's Office of Defense Trade Controls (ODTC).
Her decision states, "Because the ITAR licensing scheme fails to
provide for a time limit on the licensing decision, for prompt
judicial review and for a duty on the part of the ODTC to go to court
and defend a denial of a license, the ITAR licensing scheme as applied
to Category XIII(b) acts as an unconstitutional prior restraint in
violation of the First Amendment."
She also ruled that the export controls restrict speech based on the
content of the speech, not for any other reason. "Category XIII(b) is
directed very specifically at applied scientific research and speech
on the topic of encryption." The new regulations continue to insist
that the Government is regulating the speech because of its function,
not its content.
The judge also found that the ITAR is vague, because it does not
adequately define how information that is available to the public
"through fundamental research in science and engineering" is exempt
from the export restrictions. "This subsection ... does not give
people ... a reasonable opportunity to know what is prohibited."
Judge Patel also adopted a narrower definition of the term "defense
article" in order to save it from unconstitutional vagueness.