In a ruling released yesterday, a federal judge declared that government restrictions on the distribution of encryption software violate First Amendment rights of free speech.
U.S. District Court Judge Marilyn Patel's ruling regarded Bernstein vs. U.S. Department of State, a suit filed two years ago by University of Illinois math professor Daniel Bernstein who was told by the State Department that he couldn't publish an encryption program without registering as an arms dealer and acquiring an export license.
Because the ruling is on a constitutional matter it applies nationally until overturned by a higher court. The government is expected to appeal (See Related Story.)
The decision leaves important questions unresolved, however. Judge Patel's ruling does not necessarily bestow protected-speech status to real-world software--also known as "object code"--that uses encryption, such as email programs or Web browsers. So, for example, before Netscape Communications can ship browsers with strong built-in encryption, a decision in a higher court will likely be necessary. Judge Patel has said previously that she will automatically refer the case to a higher court for appeal.
Patel's ruling is the second on the case. She had ruled in April that software source code is a form of protected free speech. "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."
The ruling released yesterday went further, saying that existing government controls on the distribution of encryption software are so convoluted that they create an atmosphere of "prior restraint," and thus restrict constitutionally protected speech.
Daniel Bernstein was a graduate student at the University of California at Berkeley when he wrote his Snuffle encryption program. The State Department prohibited him from publishing either his software or his thesis. With the legal help of the Electronic Frontier Foundation, he filed a suit to force a precedent-setting decision.
Almost two years later, the government partially reversed its decision and declared that Bernstein's thesis and related teaching materials were not classified as munitions and could be disseminated freely. The Snuffle encryption software and its decryption companion Unsnuffle were still on the restricted list.
The environment has changed drastically since then, however. The Clinton administration is now preparing to release a new set of regulations that liberalize the encryption export rules. It is still unclear what impact the new regulations, due to take effect on January 1, will have on the Bernstein case.