Consumer groups claim victory in crypto ruling

An appeals court ruling that a US encryption export law is unconstitutional is a big victory in consumer advocates' efforts to end the government's ability to 'pry and snoop and spy' on citizens, an official with the First Amendment Project says. The Ninth Circuit Court of Appeals in San Francisco ruled that banning the posting of encryption technology on the Internet violated the freedom of speech rights of a cryptographer who wanted to post his encryption program on the Web.

An appeals court ruling that a US encryption export law is unconstitutional is a big victory in consumer advocates' efforts to end the government's ability to "pry and snoop and spy" on American citizens, an official with the First Amendment Project says.

"The purpose of US encryption law is to pry and snoop and spy. It's the same as if the government banned envelopes so they could read your mail," Jim Wheaton says. Plaintiff "Dan (Bernstein) is standing up here reasserting the right of people to do what they want."

The Ninth Circuit Court of Appeals in San Francisco issued the ruling last week, saying that banning the posting of encryption technology on the Internet violated the freedom of speech rights of cryptographer Bernstein who wanted to post his encryption program on the Web.

Bernstein, a professor in the math and computer science department at the University of Illinois at Chicago, sued the government in 1995 after he was barred from posting the source code of his "Snuffle" encryption program on a newsgroup. The government, citing national security concerns, said the encryption in the code was too strong and barred its posting on the Web which it claims is the equivalent to exporting it.

Yesterday's ruling affects only the jurisdiction of the Ninth Circuit, which comprises the western part of the US, including the high technology-rich states of California and Washington. Companies and individuals within the Ninth Circuit will be free to export their strong encryption code unless the government appeals, which lawyers for Bernstein said is expected.

Government lawyers have been "pretty strong in their public presentations" and it would be a surprise if they didn't appeal, Cindy Cohn, the lead attorney for Bernstein, says. Cohn says the government will probably ask the same three judges to reconsider the case, though the Department of Justice (DOJ) could ask for a rehearing by all of the court's 11 judges or appeal to the US Supreme Court.

DOJ attorneys are reviewing the ruling and haven't decided yet whether to file an appeal, a DOJ spokeswoman says. The government has 45 days to appeal.

Cohn says she hopes the ruling would have a positive effect on the Security and Freedom through Encryption (SAFE) Act, a bill pending in the US House of Representatives that would lift most of the restrictions on the export of encryption products. The bill, which is still under review by at least two House committees, was reintroduced this year by Representatives Robert Goodlatte, a Republican from Virginia, and Zoe Lofgren, a Democrat from California.

Goodlatte says the ruling shows "the issue has really come to a head." He expects the ruling to benefit the SAFE Act, which has gained the endorsement of 253 House members.

“This (ruling) is one more piece of evidence in support of our claim that government’s attempt to restrict access to strong encryption ... is contrary to the interests of the public."

Any momentum to push the SAFE Act, which died in previous years, would be welcome, especially since the court case will be drawn out by the government's almost certain appeal, and might ultimately be decided by the Supreme Court, he says. Goodlatte also notes that the bill will change the policy nationwide, whereas the ruling only covers the Ninth Circuit.

Cohn highlights some of the language used by the judges, saying the court opinion is encouraging to opponents of US encryption law, which is blamed for impeding electronic commerce, curtailing development of encryption technology in the United States and giving non-U.S. companies an opportunity to produce strong encryption products to fill the void.

The court opinion also showed that the judges understood the technology and were aware that their ruling would have broader societal implications, Cohn says.

"Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb," Judge Betty Fletcher wrote in the opinion. "The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost."

Although Bernstein's case dealt with source code, the ruling went further, striking down the entire encryption export law as it applies to all types of encryption technology, Elizabeth Pritzker, a lawyer with the First Amendment Project, says.

"The ruling doesn't distinguish between source code and object code," Pritzker says. "It strikes down the regulations (in their entirety) as they apply to cryptography."

Source code is the text form of operating instructions that, when compiled to binary, or object code, allow for the execution of a function by a computer.

The ruling includes object code in its scope because the regulations do not distinguish between the two, but regulate "software," says Cohn. The court said that if the government wanted to continue to regulate object code it would have to rewrite the regulations to specify that, she said, adding that the court didn't address whether object code was speech because that issue wasn't before it.

Bernstein said during the conference call that he challenged US encryption law not as a champion of the First Amendment but as an academic who wanted to publish his work.

Asked how he felt when he heard the ruling, Bernstein says, "It's really a spectacular feeling. If the government appeals, we'll have to wait until that's resolved. But it's nice to think that someday I really might be free."

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