Court Rules Encryption Code Restraints Unconstitutional

scrambling encryption codes has been ruled unconstitutional. The ruling of the three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco was handed down on Thursday, May 6 criticizing the government for "interdicting the flow of scientific ideas," saying these methods "appear to strike deep into the heartland of the First Amendment."

This decision is a major blow to the Clinton administration, which had recently softened its rules to allow encryption of some electronically posted credit card information. Mostly, though, current regulations treat encryption codes as if they were military weapons.

As part of the federal government's fight to avoid giving up any technological high ground, it has restricted the export of powerful encryption software on claims that it weakens the ability of law enforcement agencies to intercept and decode communications of international criminals.

For companies involved in E-commerce, the decision is very good news. "This is a giant step forward to bringing down export controls," said Tara Lemmey, president of the Electronic Frontier Foundation (EFF), a civil liberties group. "Encryption is critical to the advancement of the Internet, E-commerce, and communications."

The software industry and privacy advocates have been lobbying for the relaxation of encryption regulations on the premise that the software industry is being unfairly kept out of the international market for security software. They also point out that criminals and terrorists already have easy access to encryption programs developed overseas.

The appellate court's ruling upheld the 1996 lower-court ruling in the case of an Illinois mathematics professor, Daniel Bernstein, who wanted to publish the source code for his encryption program on the Internet. Bernstein wrote "Snuffle" while he was a doctoral student at the University of California at Berkeley, and he wanted to send it to members of the academic community for review and comment. However, Bernstein was unable to obtain an export license, because the State Department said encryption programs were a "munition," and as such, "Snuffle" was subject to federal arms-trafficking laws. He then filed a lawsuit, challenging the constitutionality of the government's restriction, with the financial and legal backing of EFF.

The court considers the license that Bernstein was required to obtain a form of prior restraint and that it "run[s] the twin risks of encouraging self-censorship and concealing illegitimate abuses of censorial power," the court opinion said. It also found the set of encryption regulations placed "boundless discretion in government officials."

Bernstein's attorney, Cindy Cohn, saw the decision as "a huge, giant step along the road so that the government can't prevent people from developing this tool, this science" but "I do not expect that this battle is over." She may be right. The Department of Justice, which brought the case, has 45 days to appeal the ruling to either the entire 9th Circuit Court of Appeals panel or to the U.S. Supreme Court.

For now the ruling stands, full of promise and hope. "The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost," the appeals court said.