In a potentially precedent-setting case, a federal judge
has ruled that encrypted software files are protected under the First
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.
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
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."
Encryption and the
Legislation loosens up on
RealAudio coverage: CNET Radio