Press Releases: May 1999
EFF-Sponsored Case Scores Big Victory for Free Speech, Privacy, and Security on the Internet
The Ninth Circuit Court of Appeals has ruled that the federal government's restrictions on encryption are unconstitutional, affirming a lower court's ruling that export control over cryptographic "software and related devices and technology are in violation of the First Amendment on the grounds of prior restraint."
"The Court understood the strong First Amendment issues at stake here," noted Cindy Cohn, lead counsel for the Bernstein litigation team. "The decision is thorough and should stand up to further review."
The case has been sponsored by EFF since 1995. "We sponsored Professor Dan Bernstein's case because of its importance to society, free expression, electronic commerce, and privacy in the digital world," said Tara Lemmey, EFF's President and Executive Director.
Encryption, the process of coding and decoding computerized information, is the most critical technological solution to protecting privacy and keeping computer networks secure. Acknowledging this point, the court said "[t]he availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption's bounty."
The court recognized the case's impact on society by saying "...it is important to point out that the [Bernstein case] is a suit not merely concerning a small group of scientists laboring in an esoteric field, but also touches on the public interest broadly defined."
"The US government has wielded these export controls to deliberately eliminate privacy for ordinary people," said John Gilmore, co-founder of EFF. "The controls created wireless phones that scanners can hear, e-mail that's easy to intercept, and unsecured national infrastructures that leave us all vulnerable. Misguided national security bureaucracies use these controls everyday, to damage the nation they are sworn to protect, and to undermine the constitution they are sworn to uphold. Today's ruling is a giant step toward a sane policy."
The government, led by Justice Department attorney Scott McIntosh, argued that the export control laws on encryption are necessary to protect U.S. national security. Even if the export control laws are in fact regulated speech, McIntosh argued, if the government's intent was to regulate something other than publication, it only needed to show that the rules were "narrowly tailored" to serve a "substantial government interest." The court disagreed. "[B]ecause the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech," wrote the two assenting judges.
Judge Bright indicated that due to the importance of the case "it may be appropriate for review by the US Supreme Court." EFF anticipates that the government will ask for a stay of this ruling pending appeal. If granted, the stay would prohibit encryption exports even within the Ninth Circuit's jurisdiction, including all federal courts in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands, until the matter is finally resolved.
On May 6, a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco issued a decision in a case involving government controls on encryption exports. The Department of Commerce and the Department of Justice are currently reviewing the Ninth Circuit's decision in Daniel Bernstein v. United States Department of Justice and United States Department of Commerce. We are considering possible avenues for further review, including seeking a rehearing of the appeal en banc in the Ninth Circuit.
The regulations controlling the export of encryption products currently remain in full effect. The Ninth Circuie effect until the court issues its mandate, which will not occur for at least 45 days. If the government asks the Ninth Circuit to rehear the appeal during that time, the mandate will not issue until after the Ninth Circuit has acted on the government's request.
The district court injunction in this case relating to the encryption export regulations has been stayed by orders isued earlier by the district court and the Ninth Circuit, and the stays of the injunction remain in effect until the mandate issues. Accordinaly, all persons who wish to engage in encryption export activity, including the posting or other distribution of encryption software on the Internet, must still comply with the export licensing requirements of the Export Administration Regulations, administered by the U.S. Department of Commerce's Bureau of Export Administration (BXA).
"I'm pleased the federal appeals court has affirmed Federal District Court Judge Marilyn Patel's original decision that in the name of national defense, the U.S. government should not restrict the very liberties it is supposed to be defending. This decision demonstrates the judicial branch's understanding of the encryption debate. Now is the time for Congress and the Administration to follow suit. This means passing and signing into law the SAFE ACT, which will promote the ever increasing growth of electronic commerce in a secure environment."
Rep. Eshoo is an original cosponsor of H.R. 850, the Security and Freedom through Encryption (SAFE) Act, which would allow U.S. manufacturers to export encryption software no more powerful than software already available in other countries. As a member of the House Commerce Committee, which has partial jurisdiction over the legislation, she has fought Administration efforts to weaken the SAFE Act and impose harsher encryption export curbs than currently exist. Rep. Eshoo hosted a major conference on encryption reform at Stanford University during the 104th Congress.