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SubjectFYI: Crypto Restrictions Unconstitutional - US Court


I was forwarded this today. The ruling does not affect export,
but it's interesting that "computer source code is protect speech for
purposes of the First Amendment"!

This is slightly off-topic, although it does relate to Linus's
move to the US and encryption in the Linux kernel.

Regards,
markhe

=====================================================================
=======
SUBJECT: COURT DECLARES CRYPTO RESTRICTIONS UNCONSTITUTIONAL
SOURCE: Newsbytes via First! by Individual, Inc.
DATE: December 19, 1996
INDEX: [15]
---------------------------------------------------------------------
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WASHINGTON, DC, U.S.A., 1996 DEC 19 (NB) via Individual Inc. -- By
Bill
Pietrucha. Cold War export restrictions on cryptography received a
major blow this week when a federal judge ruled that the Arms Export
Control Act is an unconstitutional prior restraint on free speech.
The ruling, hailed by the computer industry and privacy advocates,
was a setback for the Clinton Administration's efforts to build
wiretap-ready" computers, set-top boxes, telephones, and consumer
electronics.

The case focused on Daniel J. Bernstein, a research assistant
professor at the University of Illinois at Chicago, who developed an
encryption algorithm, or set of instructions. Bernstein planned to
publish his encryption algorithm, called Snuffle, in academic
journals and on the Internet.

Snuffle scrambles, or encodes, telephone and computer messages that
move across computer networks and the Internet. The messages can be
read by using Unsnuffle, Bernstein's decryption program.

The federal government, however, told Bernstein he would have to
register as an arms dealer and seek government permission before
publication, as is required by the Arms Export Control Act and the
International Traffic in Arms Regulations.

Bernstein sued the government, claiming the government's
requirements violated his First Amendment right of free speech.
Earlier this year, the government argued that since Bernstein's ideas
were expressed, in part, in computer language, or source code, they
were not protected by the First Amendment.

US District Court Judge Marilyn Hall Patel rejected the
government's argument on April 15 of this year, and held for the
first time that computer source code is protected speech for purposes
of the First Amendment.

On Monday, Judge Patel ruled that the Arms Export Control Act is an
unconstitutional prior restraint on speech, because it requires
Bernstein to submit his ideas about cryptography to the government
for review, to register as an arms dealer, and to apply for and
obtain from the government a license to publish his ideas.

Using the Pentagon Papers case as precedent, Judge Patel ruled that
the government's "interest of national security alone does not
justify a prior restraint." Under the Constitution, she said,
Bernstein now is free to publish his ideas without asking the
government's permission first. Judge Patel also held that the
government's required licensing procedure fails to provide adequate
procedural safeguards.

The immediate effect of Judge Patel's decision is that Bernstein
now is free to teach his January 13th cryptography class, and can
post his class materials on the Internet, Mike Godwin, a lawyer for
the Electronic Frontier Foundation, said.

"I'm very pleased," Bernstein said. "Now I won't have to tell my
students to burn their notebooks."

The long-range effects, however, still are cloudy, since Judge
Patel's decision only legally applies to Prof. Bernstein.

Other people and companies are still technically required to follow
the export restrictions when speaking or publishing about
cryptography, or when speaking or publishing cryptographic source
code.

The decision, however, sends a strong signal that if the government
tried to enforce these rules against other people, the courts are
likely to strike them down again, Godwin said.

Judge Patel has specifically not decided whether the export
controls on object code, the executable form of computer programs
which source code is automatically translated into, are
constitutional. Existing export controls will continue to apply to
runnable software products, such as Netscape's browser, until another
court case challenges that part of the restrictions.

In a November Executive Order, President Clinton offered limited
administrative exemptions from these restrictions to companies which
agree to undermine the privacy of their customers, Godwin said.
"Federal District Judge Patel's ruling knocks both the carrot and the
stick out of Clinton's hand," he said, "because the restrictions were
unconstitutional in the first place."

Jim Bidzos, president of RSA Data Security, one of the companies
most affected by the government's cryptography policies, said, "this
is a positive sign in the crypto wars, the first rational statement
concerning crypto policy to come out of any part of the government."
"It's nice to see that the executive branch does not get to decide
whether we have the right of free speech," PGP Inc. chairman Philip
Zimmermann said. "It shows that my own common sense interpretation of
the constitution was correct five years ago when I thought it was
safe to publish my own software, PGP. If only US Customs had seen it
that way."

Zimmermann was investigated by the government when he wrote and
gave away a program for protecting the privacy of e-mail. His "Pretty
Good Privacy" program is used by human rights activists worldwide to
protect their workers and informants from torture and murder by their
own countries' secret police.

Jerry Berman, executive director of the Center for Democracy and
Technology, a Washington-based Internet advocacy group, hailed the
victory, saying "the Bernstein ruling illustrates that the
Administration continues to embrace an encryption policy that is not
only unwise, but also unconstitutional."

The full text of the lawsuit and other paperwork filed in the case
is available from EFF's online archives at http://www.eff.org on the
Internet.

(19961219/Press Contact: Shari Steele, Electronic Frontier
Foundation, 301-375-8856; e-mail ssteele@eff.org Reported by
Newsbytes News Network at http://www.newsbytes.com)

"The Pulse of the Information Age" Newsbytes News Network
http://www.newsbytes.com 24-hour computer, telecom and online news

[12-19-96 at 15:00 EST, Copyright 1996, Newsbytes News Network.,
File: n1219004.6by]

Copyright (c) 1996 by INDIVIDUAL, Inc. All rights reserved.



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