Encryption Export Regulations Violate First Amendment

News Media and the Law, Fall 1997 | Go to article overview
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Encryption Export Regulations Violate First Amendment


In late August, a federal District Court in San Francisco struck down export restrictions on encryption technology, holding that the regulations violated the free speech provision of the First Amendment.

A bill to modify the encryption export rules has been introduced on Capitol Hill, but opponents are attempting to amend the measure to allow law enforcement agencies to have access to encrypted communications.

Daniel Bernstein was a Ph.D. candidate in mathematics at University of California at Berkeley in 1992. Bernstein was working in the field of cryptography, an area of applied mathematics that develops algorithms to ensure confidentiality in electronic communication. Bernstein designed an encryption algorithm called "Snuffle." Systems like Snuffle, which at one point were regulated by the State Department, are now overseen by the Commerce Department, which promulgated the Export Administration Regulations ("EAR").

In August 1992, the government determined that Snuffle, and Bernstein's academic paper describing it, fell under EAR's purview, and had to be licensed before they could be imported or exported. In early 1995, Bernstein filed a complaint in federal District Court in San Francisco challenging the regulations as an impermissible prior restraint, and a vague and overbroad content-based regulation on speech.

Bernstein claimed that the regulations constituted an impermissible infringement on speech in violation of the First Amendment. According to Bernstein, the regulations rendered him unable to teach, publish or discuss with other scientists his theories on cryptography embodied in Snuffle. Bernstein sought declaratory and injunctive relief from enforcement of the laws.

In September 1996, all parties moved for summary judgment. The government argued that the regulations were narrowly tailored and "solicitous" of First Amendment rights. According to the government, the regulations did not target ideas, but sought to protect against the distribution of products that could threaten national security and foreign policy interests. The government also argued that the regulations contained exemptions for disclosing technical data, taking into account First Amendment interests in the publication of scientific information and in academic discussion.

Bernstein reiterated his First Amendment claims.

The court sided with Bernstein in late August 1997, holding that the regulations constituted a prior restraint and therefore violated the First Amendment. The court said that "[o]ur right to create, use, and deploy encryption come from our basic civil rights of free speech, freedom of the press, freedom from arbitrary search, due process of law, and privacy.

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