Encryption Control 'Unconstitutional'

SAN FRANCISCO (AP) -- Forbidding the electronic export of computer encryption is a violation of free speech, a federal judge has ruled.

The U.S. software industry's plans for encryption, a security system that encodes e-mail and other documents so that they cannot be deciphered by computer eavesdroppers, have been frustrated by restrictions that do not apply to foreign competitors.

Fearful of their use by foreign governments and criminals, the government treats encryption codes as if they were military weapons and forbids their electronic export -- including Internet posting -- without a Commerce Department license.

On Monday, U.S. District Judge Marilyn Hall Patel said the Clinton administration's new rules, issued two weeks after she ruled an earlier version unconstitutional last December, were also invalid.

She said the new regulations, like the old ones, set no timetables or standards for the government's licensing decision and failed to provide for judicial review.

Noting that the case was headed for the appellate courts, however, she rejected a request for a nationwide injunction that would forbid any enforcement of the rules.

Instead, Patel issued a narrower order prohibiting enforcement against mathematician Daniel Bernstein and anyone who seeks to use, discuss or publish Bernstein's encryption program.

The same rules have been upheld by a federal judge in Washington, D.C.

The ruling ``will have a very large impact on U.S. leadership in the software industry and electronic commerce industry, and a huge impact on privacy rights for the next 100 years,'' said Laurie Fena of the Electronic Frontier Foundation, which promotes free expression in electronic communications.

Bernstein, who teaches at the University of Illinois at Chicago, developed an encryption program called Snuffle as an undergraduate in 1990.

Two years later the State Department, which then ran the regulatory program, told him he could not post his program on the Internet without an export license, which he was not granted.

Patel decided the central issue in Bernstein's lawsuit in April 1996, when she ruled that computer codes are a form of expression, ``like music and mathematical equations.''

The revised regulations let U.S. companies sell slightly more powerful encryption devices abroad, if the companies guarantee that law enforcement agencies would be able to intercept the communications with court permission.

In a hearing before Patel in June, Justice Department lawyer Anthony Coppolino said the government was not trying to suppress speech or ideas.

``We're not bent on thought control,'' he said. ``We're trying to control export from the United States of ready-made, ready-to-use encryption.''

Bernstein's lawyer, Cindy Cohn, said Monday's ruling was evidence that the Clinton administration was taking the wrong approach to the subject.

``They've refused to acknowledge that there's a First Amendment problem,'' she said. ``You can't pick an area of science and say you need a license before you publish in this area. That's what they've tried to do with encryption technology.''