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Encryption Software Curbs Ruled Unconstitutional

By John Schwartz
Washington Post Staff Writer
Thursday, December 19, 1996; Page A01

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 and 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.

© Copyright 1998 The Washington Post Company

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