Slobodan Markovic on Wed, 12 May 1999 18:43:11 +0200 (CEST)

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<nettime> US Export Control Laws on Encryption Ruled Unconstitutional

Friday, May 7, 1999

US Export Control Laws on Encryption Ruled Unconstitutional EFF-Sponsored
Case Scores Big Victory for Free Speech, Privacy, and Security on the


Cindy Cohn, McGlashan and Sarrail

Tara Lemmey, Electronic Frontier Foundation

John Gilmore, Electronic Frontier Foundation

SAN FRANCISCO, CA--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 " 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. 

Details on the Bernstein case, including information on the lower court's
rulings, are available on the Internet at:

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