April 17, 1996
Electronic Frontier Foundation Contacts:
Shari Steele, Staff Counsel
301/375-8856, ssteele@eff.org
Lori Fena, Executive Director
415/436-9333, lori@eff.org

Denying the government's motion for dismissal in mathematician Daniel Bernstein's suit against the State Department, Judge Marilyn Hall Patel in the Northern District of California ruled Monday that source code in Bernstein's cryptographic algorithm, "Snuffle," is speech that is protected from prior restraint by the First Amendment.

This is the first time a U.S. court has ruled that source code is speech under First Amendment analysis. Previously, courts have held that software is speech for copyright law only.

The decision states in part: "This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French....Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it....Thus, even if Snuffle source code, which is easily compiled into object code for the computer to read and easily used for encryption, is essentially functional, that does not remove it from the realm of speech....For the purposes of First Amendment analysis, this court finds that source code is speech."

(The full text of the decision can be found at http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/Decision_041596/)

Judge Patel's acknowledgment that source code enjoys Constitutional protection has implications that reach far beyond cases involving the export of cryptography. The decision holds importance to the future of secure electronic commerce and lays the groundwork needed to expand First Amendment protection to electronic communication.

Because of its far-reaching implications, the Bernstein case is being watched closely not only by privacy advocates, but by the entire computer industry, the export and cryptography communities and First Amendment advocates.

The decision allows Bernstein to continue with his lawsuit that the International Traffic in Arms Regulation (ITAR) acts as a prior restraint on speech and that the ITAR is overbroad and vague.

EFF is very pleased with Judge Patel's ruling and believes that it bodes well for Bernstein's ultimate success in trial, which is now scheduled to proceed with the normal pre-trial and trial sequence of events.

The court drew an important distinction between the Bernstein case and other cases involving export controls on cryptography. The government has cited several cases involving the Export Administration Act as reasons why the Bernstein case should be dismissed. Judge Patel recognized that the Constitutional questions being raised by Bernstein differ significantly from the policy questions raised in the cases introduced by the government.

Judge Patel also ruled that Bernstein could bring his case even though the Arms Export Control Act specifically precludes judicial review, because what Bernstein is asking the court to review (i.e., the constitutionality of the statute and its regulations) was not what had been precluded (i.e., the government's determination in a particular instance whether or not something was exportable). "With respect to constitutional questions, the judicial branch not only possesses the requisite expertise to adjudicate these issues, it is also the best and final interpreter of them."

As part of her decision, Judge Patel determined that only the source code was at issue in the case, not Bernstein's academic paper describing the source code. Bernstein tried to get the government to rule separately on the paper and the code back in 1993 by filing separate commodity jurisdiction requests. The State Department merged the requests and rejected them all. On June 29, 1995, after Bernstein and EFF filed suit, the government sent Bernstein a letter saying that the paper could be published and never had been forbidden. While Judge Patel claimed that the issue of the paper now appeared to be moot, she commented, "It is disquieting than an item defendants now contend could not be subject to regulation was apparently categorized as a defense article and subject to licensing for nearly two years, and was only reclassified after plaintiff initiated this action."