Encrypted software legal, judge rules

In a potentially precedent-setting case, a federal judge has ruled that encrypted software files are protected under the First Amendment.

U.S. District Judge Marilyn Patel ruled in San Francisco that source code in Daniel J. Bernstein's encryption software can be classified as speech and therefore is constitutionally protected from prior restraint.

"Like music and mathematical equations, computer language is just that--language--and it communicates information either to a computer or to those who can read it. For the purpose of First Amendment analysis, this court finds that source code is speech," Patel said in her decision.

The ruling is only the first part of a multiphase trial. It does not mean that Bernstein or other users can send encrypted messages overseas, something that current federal regulations deem a breach of national security.

However, the early decision is an important step toward freer use of encryption technology, said Shari Steele, a staff attorney with the Electronic Frontier Foundation who is representing Bernstein.

As a graduate student at the University of California at Berkeley in 1993, Bernstein wrote a thesis that explained an encryption program he created called Snuffle. Snuffle converts a readable message into a code that can be read only by using Unsnuffle, Bernstein's appropriately named decryption program.

Bernstein filed a suit against the U.S. State Department after he failed to receive government approval to present his paper and findings. The State Department regulates the use of encryption software because it is classified as munitions.

Last year, the government sent Bernstein a letter stating that his paper could be published and had in fact never been forbidden. But Bernstein and the Electronic Frontier Foundation pursued the case in an effort to force a court decision on the constitutional issues surrounding encryption technology.

"This will probably drag on for quite a while, but we didn't expect in this early perliminary stage that the court was going to come out so strongly and say software is speech," Steele said. "We're very excited about that."

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