Judges in the government's appeal of Daniel Bernstein's high-profile encryption case initially seem sympathetic toward the University of Chicago professor.
Government attorneys are appealing a lower court decision holding that the restrictions--which tightly control the export of software that codes or decodes messages--violate constitutional guarantees to free speech. A Justice Department attorney argued that the laws regulate functional products that encrypt data, not ideas about encryption. But the three-judge panel for the Ninth Circuit U.S. Court of Appeals appeared skeptical.
"Why are you saying that the fact that [encryption] is functional takes it out of the First Amendment context?" Myron Bright, one of the judges, asked the Justice Department attorney, who was still in mid-sentence. He answered that the regulations were not aimed at suppressing speech, but only at the physical capacity of encryption to thwart government intelligence gathering.
"That's just words," responded Betty Fletcher, a second judge.
Government regulations treat encryption products as potential weapons and require a license before they may be taken outside the United States. In addition to regulating computer code, the laws control the giving of "technical assistance" to foreigners. Daniel Bernstein, a math professor at the University of Illinois at Chicago, sued the government in early 1995 after spending nearly three years trying to get such a license in order to publish his encryption program, dubbed "Snuffle."
In August, U.S. District Judge Marilyn Hall Patel issued a groundbreaking decision holding that because software is considered language for purposes of the First Amendment, the regulations violated Bernstein's free speech rights. She issued an injunction permitting him to post the code on the Internet and to teach his class on cryptography to foreign students. The injunction is now on hold pending the appeal.
Justice Department attorney Scott McIntosh was repeatedly interrupted by the judges, who peppered him with questions. At one point Fletcher called the government's case "puzzling." The third judge hearing the appeal, Thomas Nelson, appeared less critical of the government's case, but at several points expressed doubts.
In rebutting arguments laid out by Bernstein's attorney, McIntosh reiterated the government's central point--that the restrictions, known as the Export Administration Regulations (EAR), are not aimed at speech and have yet to stop anyone from communicating, including Bernstein.
"There's been no attempt here to keep professor Bernstein's ideas bottled up inside his head," said McIntosh, adding that Bernstein may communicate his ideas on encryption to peers and students through a whole host of means.
"Except on the Internet," Nelson interrupted.
In order for Patel's ruling to be upheld, at least two of the three judges will need to adopt the liberal judge's somewhat expansive reading of how the First Amendment applies to software. Cindy Cohn, lead counsel for Bernstein, has been well aware of the need to drive home the point, arguing today that "when the government sets up a bureaucrat to decide who gets to speak and who doesn't get to speak," very clear limitations need to be in place.
Fletcher, an appointee of President Jimmy Carter who is generally considered liberal, appeared especially receptive to Cohn's line of reasoning. "Your argument is that if the government's purpose is legitimate and pure that should be the end of it," she told McIntosh at one point. "You don't talk about chilling effects of communication."
If any members of the three-judge panel are critical of the government's regulation scheme, they aren't the only ones. Computer software and hardware manufacturers in the United States have complained bitterly that the EAR cripples their ability to sell their wares around the world. To receive an export license, companies generally must promise to comply with a plan to build back doors into the products. Faced with the choice of buying such products from U.S. vendors and buying unfettered software elsewhere, foreign buyers will overwhelmingly choose the latter, some industry leaders say.
The gripe hasn't been lost on some lawmakers, who are pushing legislation to relax export laws. Rep. Anna Eshoo (D-California) is using the case to renew attention to the Security and Freedom through Encryption Act, a bill she is cosponsoring. It enjoys the support of more than 250 House members.
"The decision in [the] Bernstein [case] underscores the fact that, in the name of national defense, the U.S. government should not restrict the very liberties it is supposed to be defending," Eshoo said in a statement.
Attention to the case has grown as it has progressed. There was standing-room only at today's hearing, which lasted a little more than an hour. Bernstein's attorneys cautioned not to read too much into the way the hearing went but said they were upbeat about the types of questions the judges asked.
"I think it means that they've read their briefs and asked the government hard questions," Cohn said.