Appeals Court Hears Encryption Arguments

In a closely watched federal case, government lawyers urged a three-judge panel in San Francisco to reverse a lower-court ruling that data-scrambling encryption technology qualifies for First Amendment protection. Scott McIntosh, an attorney representing the Department of Commerce, argued that encryption software--which makes electronic messages nearly impossible to decode, even by government agents--is a threat to national security, and that its export should be controlled. The issue centers on a suit brought by Daniel J. Bernstein, an Illinois professor who filed a lawsuit three years ago after 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. Bernstein’s attorneys repeated their argument that computer code is a form of protected speech and that encryption enables people to share ideas without fear of eavesdropping by others. The U.S. 9th Circuit Court of Appeals judges could take months before ruling on the appeal, although many believe the case will ultimately be decided by the U.S. Supreme Court.