US ban on encryption export ruled unconstitutional

A US judge has ruled that the government's ban on the export of encryption technology is unconstitutional because it violates the right to free speech, according to the Electronic Frontier Foundation (EFF). The US Commerce Department is expected to appeal the ruling. The ruling was the latest in a series of cases involving Daniel Bernstein, a mathematics professor at the University of Illinois, who both as a graduate student and now as a professor has sought to place documents containing cryptography algorithms on the World Wide Web for academic discussion.

A US judge has ruled that the government's ban on the export of encryption technology is unconstitutional because it violates the right to free speech, according to the Electronic Frontier Foundation (EFF).

The US Commerce Department, represented by a Justice Department attorney, is expected to appeal the ruling.

The ruling was the latest in a series of cases involving Daniel Bernstein, a mathematics professor at the University of Illinois, who both as a graduate student and now as a professor has sought to place documents containing cryptography algorithms on the World Wide Web for academic discussion.

In earlier rulings, the court had confirmed that source code should be treated as speech and deserves free-speech protections. In the latest ruling, Judge Miriam Patel of the Northern District of California Federal Court found that the government's export control laws are a prior restraint on speech and are therefore unconstitutional, according to Shari Steele, a staff attorney at the EFF. The foundation has sponsored the litigation by Bernstein and is paying his legal expenses.

The latest case was brought by Bernstein because he sought an injunction to ensure that he could publish material on the Internet without being vulnerable to prosecution, Steele said. The ruling is fairly narrow, she said, and specifically permits Bernstein to publish material about his own encryption algorithm and allows anyone else to publish material about Bernstein's encryption algorithm.

US companies that have been restricted from exporting strong encryption software may use this ruling as a precedent, according to some reports. Software companies in the U.S. object to the restrictions because they fear that they will lose market share overseas if they cannot provide customers with the ability to keep electronic communications secure via encryption.

The US government has continued its policy of banning strong encryption exports, maintaining that it needs to be able to read foreign communications.

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