26 August 1997
Source: Mail list cypherpunks@toad.com

    To: bernstein-announce@toad.com
    Subject: Crypto Export Restrictions are Unconstitutional
    Date: Tue, 26 Aug 1997 10:34:53 -0700
    From: John Gilmore <gnu@toad.com>
    Sender: owner-cypherpunks@toad.com

    	  CRYPTO EXPORT RESTRICTIONS ARE UNCONSTITUTIONAL
    	Professor Bernstein is free to publish his software

    San Francisco, August 26, 1997 - The Federal District Court here
    struck down Commerce Department export restrictions on the privacy
    technology called encryption yesterday, concluding that "the
    encryption regulations are an unconstitutional prior restraint in
    violation of the First Amendment."  For the first time, Judge Marilyn
    Hall Patel ordered the government not to prosecute or harass the
    plaintiff, Professor Daniel Bernstein, and those who use or publish
    his encryption software.  The decision knocks out a major part of the
    Clinton Administration's effort to force companies to design
    government surveillance into computers, telephones, and consumer
    electronics.

    "This is wonderful news," said Prof. Bernstein.  "I hope I can get
    some of my ideas published before they change the law again."

    The decision is a victory for free speech, academic freedom, human
    rights, and the prevention of crime.  American scientists and
    engineers will now be free to collaborate with others in the United
    States and in foreign countries.  This will enable them to build a new
    generation of tools for protecting the privacy and security of our
    communications.

    "Once again, it took a federal court to sort out technology and the
    Constitution," said Lori Fena, Executive Director of the Electronic
    Frontier Foundation, which backed the suit.  "Let this decision signal
    the other two branches of government that when making laws pertaining
    to the Internet, they must honor their oaths to uphold the
    Constitution."

    The decision is strategic because the Clinton Administration has been
    using the export restrictions to influence domestic privacy policy.
    Companies that agree to build "key recovery" technology into their
    products are exempt from most of the restrictions.  Key recovery, a
    follow-on to the Clipper Chip, is designed to give the government
    untraceable access to users' private information.

    The Federal District Court of the Northern District of California
    last December struck down the ITAR, a set of encryption restrictions
    enforced by the State Department.  A few weeks later, the Government
    created virtually identical restrictions in the Commerce Department's
    Bureau of Export Administration (BXA).  Yesterday's decision
    invalidates the new restrictions, stating, "the encryption regulations
    issued by the BXA appear to be even less friendly to speech interests
    than the ITAR."  She warns that "the government cannot avoid the
    constitutional deficiencies of its regulations by rotating oversight
    of them from department to department," though concluding that she
    "does not believe that such was the intent here."

    "Our right to create, use, and deploy encryption come from our basic
    civil rights of free speech, freedom of the press, freedom from
    arbitrary search, due process of law, and privacy.  Judge Patel has
    affirmed those roots in the First Amendment," philosophizes John
    Gilmore, Electronic Frontier Foundation co-founder.  "Our Founding
    Fathers used encryption -- and even invented some -- and did not
    intend any ``crypto exceptions'' to the Bill of Rights."

    DETAILS OF MONDAY'S DECISION

    In the heart of the ruling, "The court declares that the Export
    Administration Regulations . . . insofar as they apply to or require
    licensing for encryption and decryption software and related devices
    and technology, are in violation of the First Amendment on the grounds
    of prior restraint and are, therefore, unconstitutional as discussed
    above, and shall not be applied to plaintiff's publishing of such
    items, including scientific papers, algorithms or computer programs."

    The Court also held that the government's licensing procedure fails
    to provide adequate procedural safeguards.  When the Government acts
    legally to suppress protected speech, it must reduce the chance of
    illegal censorship by the bureacrats involved, for example by making
    the government go to a judge to decide the issue.  The EAR does not
    require this; in fact, it precludes it.  "And most important, and most
    lacking, are any standards for deciding an application.  The EAR
    reviews applications for licenses ``on a case-by-case basis'' and
    appears to impose no limits on agency discretion."

    The Court dissected the export controls' exemption for printed
    materials at length, calling it "so irrational and administratively
    unreliable that it may well serve to only exacerbate the potential for
    self-censorship."  The government's "distinction between paper and
    electronic publication . . . makes little or no sense and is untenable."

    The Court not only declared that these regulations are invalid and
    unenforceable, but also prevented the Government from "threatening,
    detaining, prosecuting, discouraging, or otherwise interfering with
    plaintiff or any other person described . . . above in the exercise of
    their federal constitutional rights as declared in this order."

    The immediate effect of this decision is that Prof. Bernstein may
    publish his encryption software, and that others may read, use,
    publish and review it.  In addition, others in industry are studying
    the court's analysis, and might decide to publish their own software
    on the Internet as well.

    Pretty Good Privacy, Inc, is one such company, which believes that
    future courts will find Judge Patel's reasoning persuasive.  "We are
    particularly pleased the court has reconfirmed that computer programs,
    like other literary works, are accorded full protection under the
    First Amendment," said Bob Kohn, vice president and general counsel
    for Pretty Good Privacy.

    The final form of the judgment will be negotiated between the parties,
    and presented to the court within a week.  The government could either
    seek an emergency appeal of the injunction, or take up to 60 days from
    the entry of judgment to appeal.

    ABOUT THE ATTORNEYS

    Lead counsel on the case is Cindy Cohn of the San Mateo law firm of
    McGlashan & Sarrail, who is offering her services pro bono.  Major
    additional legal assistance is being provided by Shari Steele of the
    Electronic Frontier Foundation; Lee Tien of Berkeley; James Wheaton
    and Elizabeth Pritzker of the First Amendment Project in Oakland; and
    Robert Corn-Revere of the Washington, DC, law firm of Hogan & Hartson.

    ABOUT THE ELECTRONIC FRONTIER FOUNDATION

    The Electronic Frontier Foundation (EFF) is a nonprofit civil
    liberties organization working in the public interest to protect
    privacy, free expression, and access to online resources and
    information.  EFF is a primary sponsor of the Bernstein case.  EFF
    helped to find Bernstein pro bono counsel, is a member of the
    Bernstein legal team, and helped to collect members of the academic
    community and computer industry to support this case.

    Full text of the lawsuit and other paperwork filed in the case is
    available from EFF's online archives at:
            http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/

    Scanned images of Monday's decision are available at:
            http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/
    	      Legal/970825_decision.images

    The full text of Monday's decision will soon be available at:
            http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/
    	      Legal/970825.decision

    Professor Daniel Bernstein will be building his new Constitutionally-
    protected cryptography web page at:
    	http://pobox.com/~djb/crypto.html

    Electronic Frontier Foundation Contacts:

    	Shari Steele, Staff Attorney
    	301/375-8856, ssteele@eff.org

    	John Gilmore, Founding Board Member
    	541/354-6541, gnu@toad.com

    	Cindy Cohn, McGlashan & Sarrail
    	415/341-2585, cindy@mcglashan.com