'Shell Game' Attempts to Continue Unconstitutional Rules
SAN FRANCISCO, Dec. 30 /PRNewswire/ -- Laywers for Professor Dan
Bernstein
today asked the Government to delay enforcement of new encryption
restrictions
until they can be reviewed by a court for Constitutionality. The new
regulations contain the same features struck down earlier this month by Judge
Marilyn Hall Patel.
"The government apparently decided to ignore Judge Patel's
findings," said
Cindy Cohn, lead attorney in the case. "Instead of listening to Judge
Patel's
analysis and attempting to fix the regulations, they simply issued new ones
with the same problems. We are giving them a chance to fix this before we
bring the issue up in court."
President Clinton ordered on November 15 that the regulations be
moved
from the State Department to the Commerce Department. Judge Patel's decision
of December 6 (released December 16th) struck down the State Department
regulations as a "paradigm of standardless discretion" that required
Americans
to get licenses from the government to publish information and software about
encryption. Over Christmas, the Clinton Administration published its new
Commerce Department regulations, containing all the same problems, and put
them into immediate effect today.
The new regulations once again put Professor Bernstein at risk of
prosecution for teaching a class on encryption and publishing his class
materials on the Internet. His class begins on January 13 at the University
of Illinois at Chicago.
Professor Bernstein's letter of today proposes that the Government
agree
to delay enforcement of the new regulations while Judge Patel reviews them
for
Constitutionality. Failing that, Professor Bernstein will ask the court for
a
temporary restraining order to block their enforcement.
"The government is forcing us to go back to Judge Patel again to
have the
new regulations declared facially unconstitutional," said Ms. Cohn. "This
time we believe that a nationwide injunction against their enforcement is
merited."
"The new encryption rules are a pointless shell game," said John
Gilmore,
co-founder of the Electronic Frontier Foundation, which backed the suit.
"Industry and Congress had asked that the draconian State Department
regulations be eliminated in favor of existing, reasonable, Commerce
Department regulations. Judge Patel invalidated the State Department
regulations because they were draconian. Rather than address the concerns of
either, President Clinton moved the draconian regulations into the Commerce
Department -- and made them tougher in the process. Its his political
decision whether to ignore and anger industry leaders, but he can't ignore a
federal district court judge."
Civil libertarians have long argued that encryption should be
widely
deployed on the Internet and throughout society to protect privacy, prove the
authenticity of transactions, and improve computer security. Industry has
argued that the restrictions hobble them in building secure products, both
for
U.S. and worldwide use, risking America's current dominant position in
computer and communications technology. Government officials in the FBI and
NSA argue that the technology is too dangerous to permit citizens to use it,
because it provides privacy to criminals as well as ordinary citizens.
Background on the case
The plaintiff in the case, Daniel J. Bernstein, Research Assistant
Professor at the University of Illinois at Chicago, developed an "encryption
algorithm" (a recipe or set of instructions) that he wanted to publish in
printed journals as well as on the Internet. Bernstein sued the government,
claiming that the government's requirements that he register as an arms
dealer
and seek government permission before publication was a violation of his
First
Amendment right of free speech. This was required by the Arms Export Control
Act and its implementing regulations, the International Traffic in Arms
Regulations. The new regulations have the same effect, using the
International Emergency Economic Powers Act, the Export Administration
Regulations, and a "state of national emergency" that President Clinton
declared in 1994 and has re-declared annually.
In the first phase of this litigation, the government argued that
since
Bernstein's ideas were expressed, in part, in computer language (source
code),
they were not protected by the First Amendment. On April 15, 1996, Judge
Patel rejected that argument and held for the first time that computer source
code is protected speech for purposes of the First Amendment.
On December 6, Judge Patel ruled that the Arms Export Control Act
is a
prior restraint on speech, because it requires Bernstein to apply for and
obtain from the government a license to publish his ideas. Using the
Pentagon
Papers case as precedent, she ruled that the government's "interest of
national security alone does not justify a prior restraint."
Judge Patel also held that the governments required licensing
procedure
fails to provide adequate procedural safeguards. When the Government acts
legally to suppress protected speech, it must reduce the chance of illegal
censorship by the bureaucrats involved -- in this case, the State
Department's
Office of Defense Trade Controls (ODTC). Her decision states, "Because the
ITAR licensing scheme fails to provide for a time limit on the licensing
decision, for prompt judicial review and for a duty on the part of the ODTC
to
go to court and defend a denial of a license, the ITAR licensing scheme as
applied to Category XIII(b) acts as an unconstitutional prior restraint in
violation of the First Amendment."
She also ruled that the export controls restrict speech based on
the
content of the speech, not for any other reason. "Category XIII(b) is
directed very specifically at applied scientific research and speech on the
topic of encryption." The new regulations continue to insist that the
Government is regulating the speech because of its function, not its content.
The judge also found that the ITAR is vague, because it does not
adequately define how information that is available to the public "through
fundamental research in science and engineering" is exempt from the export
restrictions. "This subsection,...does not give people...a reasonable
opportunity to know what is prohibited." Judge Patel also adopted a narrower
definition of the term "defense article" in order to save it from
unconstitutional vagueness.
ABOUT THE ATTORNEYS
Lead counsel on the case is Cindy Cohn of the San Mateo law firm of
McGlashan & Sarrail, who is offering her services pro bono. Major additional
pro bono legal assistance is being provided by Lee Tien of Berkeley; M.
Edward
Ross of the San Francisco law firm of Steefel, Levitt & Weiss; James Wheaton
and Elizabeth Pritzker of the First Amendment Project in Oakland; and Robert
Corn-Revere, Julia Kogan, and Jeremy Miller of the Washington, DC, law firm
of
Hogan & Hartson.
ABOUT THE ELECTRONIC FRONTIER FOUNDATION
The Electronic Frontier Foundation (EFF) is a nonprofit civil liberties
organization working in the public interest to protect privacy, free
expression, and access to online resources and information. EFF is a primary
sponsor of the Bernstein case. EFF helped to find Bernstein pro bono
counsel,
is a member of the Bernstein legal team, and helped collect members of the
academic community and computer industry to support this case.
Full text of the lawsuit and other paperwork filed in the case is
available from EFF's online archives at:
http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/
The full text of today's letter from Professor Bernstein to the
Government, and proposed stipulation, are at:
http://www.eff.org/pub/Privacy/ITAR_export/
Bernstein_case/Legal/961230.letter
http://www.eff.org/pub/Privacy/ITAR_export/
Bernstein_case/Legal/961230_proposed.stipulation
The new Commerce Department Export Administration Regulations are
available at:
http://www.eff.org/pub/Privacy/ITAR_export/961230_commerce.regs
CO: Electronic Frontier Foundation
ST: California
IN: CPR
SU:
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