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LYNX-DEV US Court's Encryption Ruling
From: |
Philip Webb |
Subject: |
LYNX-DEV US Court's Encryption Ruling |
Date: |
Thu, 19 Dec 1996 17:40:37 -0500 (EST) |
In case anyone missed Washington Post today, here's their story
re a very important court case re the encryption battle.
ENCRYPTION SOFTWARE CURBS RULED UNCONSTITUTIONAL
Judge Voids Some Controls on U.S. Exports
By John Schwartz, Washington Post Staff Writer
Thursday, December 19 1996
A federal judge yesterday struck down Clinton administration
restrictions on the export of some forms of data-scrambling software,
calling it a violation of free-speech rights.
U.S. District Judge Marilyn Hall Patel ruled that the government's
attempts to keep an Illinois professor of mathematics from exporting
an encryption program he created were an unconstitutional restriction
of his right to freedom of expression.
Encryption software, which allows people to turn their telephone
conversations and data into virtually uncrackable code, has been at
the heart of one of the hardest-fought technology controversies for
the Clinton administration. Despite protests from the computer
industry, the government restricts its export on the grounds that it
could aid criminals and terrorists.
This decision, handed down in a San Francisco court, does not directly
declare all encryption export controls illegal, but stands as a
substantial court victory for opponents of the controls.
"It's an important case," said Jerry Berman, executive director of the
Center for Democracy and Technology, an advocacy group that has
opposed the export restrictions. "It's not the silver bullet -- yet.
But it's an important piece."
Administration officials have warned that the proliferation of
encryption software could allow criminals, terrorists and spies to
mask their plans and movements. Thus the White House has pushed for
national encryption policies that would allow government agents to
crack the codes if they had court orders. The government also has
restricted the export of stronger forms of encryption.
Privacy advocates and the computer industry, on the other hand, have
fought for the right to strong encryption. They contend that it's
crucial to personal privacy in the age of electronic communications.
Efforts to weaken the technology and to restrict its export have put
American products at a disadvantage in the global market and will
leave customers with little confidence in online commerce & communications.
Officially, the administration classifies the technology as a
munition, with many of the same export restrictions that are applied
to jet fighters and other weapons. But in this country encryption
software has become a commodity product, included in popular
off-the-shelf computer programs and easily copied and transmitted
around the globe on the Internet.
The Illinois professor, Daniel J. Bernstein, wrote a program called
Snuffle, which he wanted to share with encryption researchers all over
the world in a form that would allow them to see precisely how it worked.
The government attempted initially to restrict the export not only of
the software but also of a scientific article describing it in detail.
It later withdrew its objections about the articles, but continued to
bar the export of the program. Rather than follow the government's
requirements that he register as a munitions dealer to request export,
Bernstein sued.
Judge Patel said the government's system for licensing encryption
products for export was "a paradigm of standardless discretion."
Because it fails to provide for a time limit for deciding on license
and prompt judicial review and government defense of export decisions,
it acts as "an unconstitutional prior restraint in violation of the
First Amendment."
After years of negotiations with the software industry, the Clinton
administration recently announced a plan to break the logjam over
encryption by easing some export restrictions. The decision creates
further uncertainty for that plan, which has received only lukewarm
support from the computer industry.
Encryption advocates were jubilant yesterday. "We're pleased that
Judge Patel understands that our national security requires protecting
our basic rights of free speech and privacy," said John Gilmore of the
Electronic Frontier Foundation, a group that is against the controls.
Calls to the White House press office last night were not answered.
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