December 19, 1996 11:00 AM ET
Industry lauds cryptography ruling
By Margaret Kane

  Privacy advocates hailed the decision of a federal judge in San Francisco this week to strike down export restrictions on cryptography, calling the restrictions a prior restraint on free speech forbidden by the First Amendment.

The Electronic Freedom Frontier called the ruling "a victory for free speech, academic freedom and the prevention of crime. American scientists and engineers will now be free to collaborate with their peers in the United States and other countries. This will enable them to build a new generation of tools for protecting the privacy and security of communications."

The case was brought by Daniel Bernstein, a graduate student at the University of California at Berkeley who wrote an encryption program called "Snuffle." Bernstein filed suit against the U.S. government, charging that the Export Control Act and the ITAR (International Traffic in Arms Regulations) Act, key pieces of federal legislation preventing the exportation of cryptographic software, violated the First Amendment.

In the decision, made public Wednesday, Judge Marilyn Hall Patel ruled that the program "is speech afforded the full protection of the First Amendment not because it enables encryption, but because it is itself speech."

"This is a positive sign in the [cryptography] wars -- the first rational statement concerning crypto policy to come out of any part of the government," said Jim Bizdos, president of RSA Data Security Inc. The cryptography industry has strongly opposed regulations on the export of software.

Judge Patel ruled that while the government does have an interest in regulating encryption, the licensing structure set up by the government violates the First Amendment and is unenforceable.

"With respect to encryption, the stronger the cryptographic algorithm, the better the science and the more noteworthy the academic speech, but also the more powerful are its effects and therefore the greater the interest in government regulation," she wrote, adding that "this court finds nothing in the ITAR that places even minimal limits on the discretion of the licensor and hence nothing to alleviate the danger of arbitrary or discriminatory licensing decisions."

Patel, however, did not grant Bernstein an injunction from prosecution of the laws, saying that he didn't face an immediate threat because she had just overturned them.

She also ruled that publishing a document on the Internet can be considered export, a blow to speech advocates.

"It seems reasonably clear that uploading an item to an Internet site that can be accessed in a foreign country constitutes 'sending' a defense article out of the country," she wrote.

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