Academia is supposed to be the last bastion of free speech, but the government's final encryption rules have put classes on the subject at risk.
Released December 27 by the Commerce Department, the rules allow for the unregulated export of encryption if the exporter builds a "key recovery" system that would let law enforcement decode encrypted data within two years.
The regulations were jeered not only by angry software firms, but also professor Daniel Bernstein, who just weeks ago won the right to teach a course about an encryption program he wrote. He thought that it was safe to teach his class at the University of Illinois at Chicago starting January 13, but he could face prosecution under the new rules, his lawyers said.
Bernstein sued the government two years ago, claiming his free speech rights were violated. Under the umbrella of "national security" he was required to get permission to publish papers about the program. The new policy has the same effect, his lawyer said, and this flies in the face of a federal judge's December 6 ruling that deemed computer source code protected under the First Amendment.
"It's important to remember that teaching, especially at the university level, doesn't just happen in the classroom," said Cindy Cohn, attorney for Bernstein. "The rules on their face breech the posting of encryption source code and related technical data to the Internet. If that process is cut off, then people aren't going to be able to learn about it anymore."
Limiting online discussion about cryptography is an issue professors seem willing to fight, along with other freedom of speech issues such as the Communication Decency Act.
In August, a Cleveland law professor Peter Junger challenged government regulations that prevent the teaching of encryption technology to foreign students. Junger, a 25-year veteran of Case Western Reserve School of Law, filed a federal lawsuit claiming that the State Department and the National Security Agency limit his right to teach his Computers and the Law class on cryptography and post course materials online.
When the government tries to stifle academic freedom it will always face heavy opposition, said attorney Shari Steele of the Electronic Frontier Foundation, which is sponsoring the Bernstein case. "Academics are more aware of the fact that sometimes you have to fight for your freedoms to keep them," she said.
Bernstein and his lawyers asked the government on December 31 to voluntarily delay enforcement of new restrictions until they can be reviewed by U.S. District Court Judge Marilyn Patel. She declared on December 16 that the old rules, which were administered by the State Department, unconstitutionally restricted free speech.
Bernstein threatened to file for a temporary restraining order, to block enforcement, if the government missed its deadline yesterday. The government told Bernstein's lawyer it will respond to the requests today.
"We're going to wait and hear what they have to say," Cohn said. "They understand our time pressures. They said they were going to consider some of our requests in good faith."
Although the regulations don't require a license for discussion or teaching information about cryptography, Cohn said the terms "information about cryptography" aren't defined. Under the Constitution, any limitations on speech have to be very clearly defined.
In a December 31 letter to the Justice Department, Cohn listed academic activities that could possibly violate the policy including: publication and distribution of Bernstein's software; lecturing to both U.S. and foreign students about how to use encryption items; communicating with other professors about encryption over phone, fax, U.S. mail, or the Internet, and creating Web sites that include course material about encryption.
"I'm asking the government to stipulate that it will not prosecute for these things," Cohn said. "It's already obvious they don't intend to protect the publishing of course materials about encryption online. But the only reason he wants a Web site is because it's easier to distribute materials that way. It's becoming the standard way in which course materials in computer science are distributed."