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From: David Farber <farber () central cis upenn edu>
Date: Tue, 21 Feb 1995 23:18:30 -0500

        First Amendment Protects Information about Privacy Technologies

February 21, 1995
San Mateo, California

In a move aimed at expanding the growth and spread of privacy and
security technologies, the Electronic Frontier Foundation is sponsoring a
federal lawsuit filed today seeking to bar the government from restricting 
publication of cryptographic documents and software.  EFF argues that 
the export-control laws, both on their face and as applied to users of 
cryptographic materials, are unconstitutional.

Cryptography, defined as "the science and study of secret writing,"
concerns the ways in which communications and data can be encoded to
prevent disclosure of their contents through eavesdropping or message
interception.  Although the science of cryptography is very old, the
desktop-computer revolution has made it possible for cryptographic
techniques to become widely used and accessible to nonexperts.  EFF
believes that this technology is central to the preservation of privacy 
and security in an increasingly computerized and networked world.

The plaintiff in the suit is a graduate student in Mathematics at the 
University of California at Berkeley named Dan Bernstein.  Bernstein 
developed an encryption equation, or algorithm, and wishes to publish the 
algorithm, a mathematical paper that describes and explains the algorithm, 
and a computer program that implements the algorithm.  Bernstein also
wishes to discuss these items at mathematical conferences and other open,
public meetings.

The problem is that the government currently treats cryptographic software 
as if it were a physical weapon and highly regulates its dissemination.  Any 
individual or company who wants to export such software -- or to publish 
on the Internet any "technical data" such as papers describing encryption 
software or algorithms -- must first obtain a license from the State 
Department.  Under the terms of this license, each recipient of the licensed 
software or information must be tracked and reported to the government. 
Penalties can be pretty stiff -- ten years in jail, a million dollar
criminal fine, 
plus civil fines.  This legal scheme effectively prevents individuals from 
engaging in otherwise legal communications about encryption.

The lawsuit challenges the export-control scheme as an ``impermissible
prior restraint on speech, in violation of the First Amendment.''
Software and its associated documentation, the plaintiff contends, are
published, not manufactured; they are Constitutionally protected works of
human-to-human communication, like a movie, a book, or a telephone
conversation.  These communications cannot be suppressed by the government
except under very narrow conditions -- conditions that are not met by the
vague and overbroad export-control laws.  In denying people the right to
publish such information freely, these laws, regulations, and procedures
unconstitutionally abridge the right to speak, to publish, to associate
with others, and to engage in academic inquiry and study.  They also have
the effect of restricting the availability of a means for individuals to
protect their privacy, which is also a Constitutionally protected interest.

More specifically, the current export control process:

  * provides too few procedural safeguards for First Amendment rights; 

  * requires publishers to register with the government, creating in 
    effect a "licensed press";
  * disallows general publication by requiring recipients to be 
    individually identified; 

  * is sufficiently vague that ordinary people cannot know what conduct 
    is allowed and what conduct is prohibited; 

  * is overbroad because it prohibits conduct that is clearly protected 
    (such as speaking to foreigners within the United States); 

  * is applied overbroadly, by prohibiting export of software that 
    contains no cryptography, on the theory that cryptography could be added
    to it later; 

  * egregiously violates the First Amendment by prohibiting private
    speech on cryptography because the government wishes its own opinions
    on cryptography to guide the public instead; and  

  * exceeds the authority granted by Congress in the export control laws 
    in many ways, as well as exceeding the authority granted by the

If this suit is successful in its challenge of the export-control laws, it
will clear the way for cryptographic software to be treated like any other
kind of software.  This will allow companies such as Microsoft, Apple,
IBM, and Sun to build high-quality security and privacy protection into
their operating systems.  It will also allow computer and network users,
including those who use the Internet, much more freedom to build and
exchange their own solutions to these problems, such as the freely
available PGP encryption program.  And it will enable the next generation
of Internet protocols to come with built-in cryptographic security and
privacy, replacing a sagging part of today's Internet infrastructure.

Lead attorney on the case is Cindy Cohn, of McGlashan and Sarrail in San
Mateo, CA, who is offering her services pro-bono.  Major assistance has
been provided by Shari Steele, EFF staff; John Gilmore, EFF Board; and Lee
Tien, counsel to John Gilmore.  EFF is organizing and supporting the case
and paying the expenses.

The suit was filed in Federal District Court for the Northern District of 
California.  EFF anticipates that the case will take several years to win.  If 
the past is any guide, the government will use every trick and every
procedural delaying tactic available to avoid having a court look at the
real issues.  Nevertheless, EFF remains firmly committed to this long term
project.  We are confident that, once a court examines the issues on the
merits, the government will be shown to be violating the Constitution, and
that its attempts to restrict both freedom of speech and privacy will be
shown to have no place in an open society.

Full text of the lawsuit and other paperwork filed in the case is available 
from the EFF's online archives.  The exhibits which contain cryptographic 
information are not available online, because making them publicly available 
on the Internet could be considered an illegal export until the law is struck 
down.  See:

[NOTE: Currently only the Exhibits documents are available; the complaint
and other docs will appear shortly]
ftp.eff.org, /pub/EFF/Policy/Crypto/ITAR_export/Bernstein_case/
gopher.eff.org, 1/EFF/Policy/Crypto/ITAR_export/Bernstein_case

Press contact:  Shari Steele, EFF:  ssteele () eff org, +1 202 861 7700.

For further reading, we suggest:

The Government's Classification of Private Ideas: Hearings Before a
Subcomm. of the House Comm. on Government Operations, 96th Cong., 2d
Sess.  (1980)

John Harmon, Assistant Attorney General, Office of Legal Counsel,
Department of Justice, Memorandum to Dr. Frank Press, Science Advisor to
the President, Re:  Constitutionality Under the First Amendment of ITAR
Restrictions on Public Cryptography (May 11, 1978).  [Included in the
above Hearings; also online as http://www.eff.org/pub/EFF/Policy/Crypto/

Alexander, Preserving High-Tech Secrets:  National Security Controls on
University Research and Teaching, 15 Law & Policy in Int'l Business 173

Cheh, Government Control of Private Ideas-Striking a Balance Between
Scientific Freedom and National Security, 23 Jurimetrics J. 1 (1982)

Funk, National Security Controls on the Dissemination of Privately
Generated Scientific Information, 30 U.C.L.A. L. Rev. 405 (1982)

Pierce, Public Cryptography, Arms Export Controls, and the First
Amendment: A Need for Legislation, 17 Cornell Int'l L. J. 197 (1984)

Rindskopf and Brown, Jr., Scientific and Technological Information and
the Exigencies of Our Period, 26 Wm. & Mary L. Rev. 909 (1985)

Ramirez, The Balance of Interests Between National Security Controls and
First Amendment Interests in Academic Freedom, 13 J. Coll. & U. Law 179

Shinn, The First Amendment and the Export Laws: Free Speech on
Scientific and Technical Matters, 58 Geo. W. L. Rev. 368 (1990)

Neuborne and Shapiro, The Nylon Curtain: America's National Border and
the Free Flow of Ideas, 26 Wm. & Mary L. Rev. 719 (1985)

Greenstein, National Security Controls on Scientific Information, 23
Jurimetrics J. 50 (1982)

Sullivan and Bader, The Application of Export Control Laws to Scientific
Research at Universities, 9 J. Coll. & U. Law 451 (1982)

Wilson, National Security Control of Technological Information, 25
Jurimetrics J. 109 (1985)

Kahn, The Codebreakers:  The Story of Secret Writing. New York:  
Macmillan (1967)  [Great background on cryptography
and its history.]

Relyea, Silencing Science: national security controls and scientific 
communication, Congressional Research Service.  Norwood, NJ: 
Ablex Publishing Corp. (1994)

John Gilmore, Crypto Export Control Archives, online at

EFF Crypto Export Control Archives, online at
ftp.eff.org, /pub/EFF/Policy/Crypto/ITAR_export/
gopher.eff.org, 1/EFF/Policy/Crypto/ITAR_export

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