Encryption Controls Ruled Unconstitutional

Forbidding the electronic export of computer encryption is a violation of free speech, a federal judge has ruled in San Francisco. Fearful of their use by foreign governments and criminals, the government treats encryption codes as if they were military weapons and forbids their electronic export--including Internet posting--without a Commerce Department license. U.S. District Judge Marilyn Hall Patel said the Clinton administration’s rules were invalid. She said the regulations set no timetables or standards for the government’s licensing decision and failed to provide for judicial review. The same rules have been upheld by a federal judge in Washington, D.C. Noting that the case was headed for the appellate courts, Patel rejected a request for a nationwide injunction that would forbid any enforcement of the rules. Instead, she issued a narrower order prohibiting enforcement against mathematician Daniel Bernstein and anyone who seeks to use, discuss or publish Bernstein’s encryption program. Bernstein, who teaches at the University of Illinois at Chicago, developed an encryption program called Snuffle in 1990. Two years later, the State Department, which then ran the regulatory program, told him he could not post his program on the Internet without an export license, which he was not granted. Patel decided the central issue in Bernstein’s lawsuit in April 1996, when she ruled that computer codes are a form of expression, “like music and mathematical equations.”