Government Is Dealt Blow on Encryption Code Restraints
Government efforts to block the export of data-scrambling encryption code are an unconstitutional restraint on free speech, according to a ruling by a federal appeals court in San Francisco on Thursday.
The decision, which affirms an earlier lower court ruling, is a significant setback for the government in its efforts to curb the spread of encryption technology developed by U.S. companies.
“This is a giant step forward to bringing down export controls,” said Tara Lemmey, president of the Electronic Frontier Foundation, a civil liberties group. “Encryption is critical to the advancement of the Internet, e-commerce and communications.”
The government has up to 45 days to appeal the ruling, perhaps to the U.S. Supreme Court, and export restrictions will remain in place in the meantime. Government attorneys were not available for comment.
But the three-judge panel on the U.S. 9th Circuit Court of Appeals chastised the government for “interdicting the flow of scientific ideas,” and said such efforts “appear to strike deep into the heartland of the 1st Amendment.”
Encryption software is widely used on the Internet to scramble everything from e-mail to financial transactions, rendering sensitive communications unreadable to all but intended recipients.
The federal government has restricted the export of the most powerful encryption software on the grounds that it weakens the ability of law enforcement agencies to intercept and decode the communications of international crime rings and terrorists.
Thursday’s ruling arose from a case involving an encryption program created by a University of Illinois professor while he was a UC Berkeley student in the early 1990s.
The professor, Daniel J. Bernstein, sought permission to publish the source code for his program, called “Snuffle,” but the State Department rejected the request, saying the program was a “munition” subject to federal arms-trafficking regulations.
Backed by privacy advocates and civil liberties groups, Bernstein filed a suit arguing that the government’s restriction was unconstitutional. That view was first affirmed by a U.S. District Court in Northern California, and upheld on Thursday by the appellate panel.
The panel noted that Bernstein wished to publish his program in “source code” format, meaning as text that can be read by humans. Programmers share ideas by exchanging source code the “way that mathematicians use equations,” a means of sharing ideas that deserves 1st Amendment protection.
The 9th Circuit encompasses nine Western states, including California.
Privacy advocates and software industry executives in the U.S. have chafed under the restrictions, arguing that it keeps them out of a growing international market for security software. They also point out that criminals and terrorists are free to use powerful encryption programs developed overseas.
In its comments, the appellate panel made an argument for relaxing export controls and encouraging the development of encryption technology. “The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost,” the court said.
