Press Releases: April 1996
April 17, 1996
Electronic Frontier Foundation Contacts:
Shari Steele, Staff Counsel
Lori Fena, Executive Director
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.
CASE WILL PROCEED
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."
On October 20th in San Francisco, we'll have the first public hearing
in the EFF/Bernstein lawsuit, which seeks to have the export laws on
cryptography declared unconstitutional. You are invited!
Meet at the Federal Building in San Francisco, 450 Golden Gate Avenue.
The first "oral arguments" in the Bernstein crypto export case will
happen there, starting at 10:30am PST, in Judge Marilyn Hall Patel's
courtroom, upstairs. We've been FedExing legalese back and forth for
months; now we get to explain the case in person. You can meet our
intrepid lawyers, who are slaving away without pay, _in_durance_vile_,
to protect our rights! Shake hands with an NSA lawyer specially flown
in for the occasion! Meet some local journalists! And watch the
wheels of justice grind as the judge first explores our case.
In this case, Dan Bernstein, ex-grad-student from UC Berkeley, is
suing the State Department, NSA, and other agencies, with help from
EFF. Our main argument is that the export controls on crypto software
are a "prior restraint on publication" which is unconstitutional under
the First Amendment unless handled very delicately by a court (not just
by an agency acting on its own). These agencies restrained Dan's ability
to publish a paper, as well as source code, for the crypto algorithm that
he invented. There are additional arguments along the lines that the
State Department and NSA take a lot more liberties during the export
process than their own regulations and laws really permit.
Like Phil Karn's case, this lawsuit really has the potential to outlaw
the whole NSA crypto export scam. We could make your right to publish
and export crypto software as well-protected by the courts as your
right to publish and export books. Of course, the government would
appeal any such decision, and it will take years and probably an
eventual Supreme Court decision to make it stick. But you can be
there at the very beginning.
Please make a positive impression on the judge. Show her -- by
showing up -- that this case matters to more people than just the
plaintiff and defendant. That how it gets decided will make a
difference to society. That the public and the press are watching,
and really do care that it gets handled well. We'll have to be quiet
and orderly while we're in the courthouse. There will be no questions
from the audience (that's us), but the session will be tape-recorded,
and you can take notes if you like. Banners and inflamatory t-shirts are
probably not a good idea. Consider this a dress-up day.
The particular issue in front of Judge Patel on the 20th is whether the
case should be thrown out. The government is arguing that it should.
It's a mess of legal details about whether the Judicial Branch has the
right to decide questions like this, and over whether we have really
properly claimed a Constitutional rights violation. It will teach
most observers something about how the courts work, and how the NSA and
State Dept use bureaucratic tricks to avoid facing the real issues.
We have managed to drag in some of these issues, like whether there is
sufficient "expression" in software that the First Amendment should
protect publishers of software. It's possible, but unlikely, that the
judge will decide then-and-there. We will get some clues to how
she is leaning, based on her questions and comments. Her written
decision will come out some days or weeks later.
Don't bring any interesting devices unless you're willing to check
them with the lobby guards for the duration. They seem to want to
hold onto guns, "munitions", and even small pocketknives, before
they'll let you go upstairs to the courtrooms.