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.