Judge Voids Encryption Export Ban

Adding a new twist to a heated battle over government restrictions on data-scrambling technology, a San Francisco federal judge has ruled that government regulations barring the export of encryption software are an unconstitutional violation of free speech.

Ruling in favor of an Illinois math professor who attempted to publish his encryption codes on the Internet, U.S. District Judge Marilyn Hall Patel in San Francisco struck down the government regulations as a “paradigm of standard-less discretion” that failed to protect 1st Amendment rights.

Encryption technology is designed to encode data sent across communications networks so that it is unreadable to anyone other than the intended recipient. Its export is regulated under a law that counts encryption as a form of munitions.

The decision was a vindication for mathematician Daniel Bernstein, who filed a lawsuit two years ago when the government told him he had to register as an arms dealer to publish Snuffle, an encryption program he wrote as a graduate student at UC Berkeley.

The regulations, which prohibit the distribution of encryption to foreigners in any form without explicit government approval, would also have barred Bernstein from using Snuffle in an undergraduate class he is scheduled to teach next month at the University of Illinois, in which he expected to have several foreign students.

“It’s hard to imagine after years of being threatened by this law that I’m actually free from it,” Bernstein said in an interview Wednesday. “The most important thing is that in a few weeks I’ll be able to walk into my cryptography course and teach. I won’t have to tell the students to burn their books. I won’t have to throw out the foreigners.”

Because the decision--disclosed Wednesday by Bernstein’s lawyers--came from a District Court, it does not establish a nationwide precedent. Still, it is a major victory for civil libertarians, who have long supported the use of encryption as one of the few means by which individuals and businesses can protect their privacy in an era of burgeoning electronic communications.

Many computer companies have also opposed the government’s rules on the grounds that they merely shut U.S. companies out of certain markets and divert sales to European and Japanese competitors.

But the government fears that free export of encryption software will put the technology in the hands of criminals and foreign enemies and thus pose a threat to national security and law enforcement.

The government will almost certainly appeal the decision. Justice Department attorneys were not available for comment Wednesday. The government argued that because it was restricting the encryption program based upon its function, not its informational value, the 1st Amendment did not apply.

But Bernstein attorney Cindy Cohn contended that the export restrictions, known as the International Traffic in Arms Regulations, or ITAR, failed to meet the requirements established in a 1965 Supreme Court decision that any government restrictions of speech allow for a quick decision and an expedited judicial review that places the burden of proof on the government.

Patel agreed, saying that “the ITAR scheme fails on every count” and that the regulations are “an unconstitutional prior restraint in violation of the 1st Amendment.”

The export rules have been the subject of intense debate in the computer industry and government security circles for several years. The White House has advocated domestic encryption policies that would allow law enforcement officials to crack the codes if they had court orders and the restriction of the export of stronger forms of encryption.

Civil libertarians hope that the decision will influence that debate, which has thus far produced a series of policies that have pleased almost no one and largely failed to resolve the issue.

In October, the government agreed to relax export controls for data-scrambling technology, but only if companies established systems that would allow special keys for the codes to be obtained by law enforcement officials with a court warrant. The plan has drawn lukewarm support from some in the industry and has continued opposition from many quarters.

“The government has been trying to use the export controls to get companies to subvert the security of their products,” said John Gilmore of the Electronic Frontier Foundation. “This knocks the carrot and stick out of their hand, because the regulations they’re offering exemptions from are unconstitutional anyway.”