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From Randy Terbush <>
Subject Crypto
Date Sat, 28 Dec 1996 18:36:52 GMT

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Date: Sun, 22 Dec 1996 08:46:31 +0300 (MSK)
From: "Dmitri V. Lukyanov" <>
Subject: (fwd) FYI: Crypto Restrictions Unconstitutional - US Court
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Is this the end of FreeBSD password encryption problems?

From: Mark Hemment <>
Date: Fri, 20 Dec 1996 18:50:21 +0000 (GMT)
Subject: FYI: Crypto Restrictions Unconstitutional - US Court

I was forwarded this today.  The ruling does not affect export,
but it's interesting that "computer source code is protect speech for 
purposes of the First Amendment"!

This is slightly off-topic, although it does relate to Linus's 
move to the US and encryption in the Linux kernel.


SOURCE:   Newsbytes via First! by Individual, Inc.
DATE:     December 19, 1996
INDEX:    [15]
- - ---------------------------------------------------------------------
- - -------

  WASHINGTON, DC, U.S.A., 1996 DEC 19 (NB) via Individual Inc. -- By 
Pietrucha. Cold War export restrictions on cryptography received a 
major blow this week when a federal judge ruled that the Arms Export 
Control Act is an unconstitutional prior restraint on free speech. 
The ruling, hailed by the computer industry and privacy advocates, 
was a setback for the Clinton Administration's efforts to build 
wiretap-ready" computers, set-top boxes, telephones, and consumer 

  The case focused on Daniel J. Bernstein, a research assistant 
professor at the University of Illinois at Chicago, who developed an 
encryption algorithm, or set of instructions. Bernstein planned to 
publish his encryption algorithm, called Snuffle, in academic 
journals and on the Internet.

  Snuffle scrambles, or encodes, telephone and computer messages that 
move across computer networks and the Internet. The messages can be 
read by using Unsnuffle, Bernstein's decryption program.

  The federal government, however, told Bernstein he would have to 
register as an arms dealer and seek government permission before 
publication, as is required by the Arms Export Control Act and the 
International Traffic in Arms Regulations.

  Bernstein sued the government, claiming the government's 
requirements violated his First Amendment right of free speech. 
Earlier this year, the government argued that since Bernstein's ideas 
were expressed, in part, in computer language, or source code, they 
were not protected by the First Amendment.

  US District Court Judge Marilyn Hall Patel rejected the 
government's argument on April 15 of this year, and held for the 
first time that computer source code is protected speech for purposes 
of the First Amendment.

  On Monday, Judge Patel ruled that the Arms Export Control Act is an 
unconstitutional prior restraint on speech, because it requires 
Bernstein to submit his ideas about cryptography to the government 
for review, to register as an arms dealer, and to apply for and 
obtain from the government a license to publish his ideas.

  Using the Pentagon Papers case as precedent, Judge Patel ruled that 
the government's "interest of national security alone does not 
justify a prior restraint." Under the Constitution, she said, 
Bernstein now is free to publish his ideas without asking the 
government's permission first. Judge Patel also held that the 
government's required licensing procedure fails to provide adequate 
procedural safeguards.

  The immediate effect of Judge Patel's decision is that Bernstein 
now is free to teach his January 13th cryptography class, and can 
post his class materials on the Internet, Mike Godwin, a lawyer for 
the Electronic Frontier Foundation, said.

  "I'm very pleased," Bernstein said. "Now I won't have to tell my 
students to burn their notebooks."

  The long-range effects, however, still are cloudy, since Judge 
Patel's decision only legally applies to Prof. Bernstein.

  Other people and companies are still technically required to follow 
the export restrictions when speaking or publishing about 
cryptography, or when speaking or publishing cryptographic source 

  The decision, however, sends a strong signal that if the government 
tried to enforce these rules against other people, the courts are 
likely to strike them down again, Godwin said.

  Judge Patel has specifically not decided whether the export 
controls on object code, the executable form of computer programs 
which source code is automatically translated into, are 
constitutional. Existing export controls will continue to apply to 
runnable software products, such as Netscape's browser, until another 
court case challenges that part of the restrictions.

  In a November Executive Order, President Clinton offered limited 
administrative exemptions from these restrictions to companies which 
agree to undermine the privacy of their customers, Godwin said. 
"Federal District Judge Patel's ruling knocks both the carrot and the 
stick out of Clinton's hand," he said, "because the restrictions were 
unconstitutional in the first place."

  Jim Bidzos, president of RSA Data Security, one of the companies 
most affected by the government's cryptography policies, said, "this 
is a positive sign in the crypto wars, the first rational statement 
concerning crypto policy to come out of any part of the government." 
"It's nice to see that the executive branch does not get to decide 
whether we have the right of free speech," PGP Inc. chairman Philip 
Zimmermann said. "It shows that my own common sense interpretation of 
the constitution was correct five years ago when I thought it was 
safe to publish my own software, PGP. If only US Customs had seen it 
that way."

  Zimmermann was investigated by the government when he wrote and 
gave away a program for protecting the privacy of e-mail. His "Pretty 
Good Privacy" program is used by human rights activists worldwide to 
protect their workers and informants from torture and murder by their 
own countries' secret police.

  Jerry Berman, executive director of the Center for Democracy and 
Technology, a Washington-based Internet advocacy group, hailed the 
victory, saying "the Bernstein ruling illustrates that the 
Administration continues to embrace an encryption policy that is not 
only unwise, but also unconstitutional."

  The full text of the lawsuit and other paperwork filed in the case 
is available from EFF's online archives at on the 

  (19961219/Press Contact: Shari Steele, Electronic Frontier 
Foundation, 301-375-8856; e-mail Reported by 
Newsbytes News Network at

  "The Pulse of the Information Age" Newsbytes News Network 24-hour computer, telecom and online news

[12-19-96 at 15:00 EST, Copyright 1996, Newsbytes News Network., 
File: n1219004.6by]

  Copyright (c) 1996 by INDIVIDUAL, Inc.  All rights reserved.

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