Export Controls Ruled Unconstitutional

The U.S. government considers encryption technology a munition, placing it under the same export controls as bombs. These controls have a strong chilling effect on academic freedom, requiring researchers to register as international arms dealers and obtain licenses in order to publish and discuss cryptographic research. Penalties for violations include up to ten years in prison and up to $1 million in fines.

In December 1996, a federal judge ruled then-current restrictions unconstitutional.

In 1993, University of California at Berkeley graduate student Daniel Bernstein was told by the State Department that he could not publish his encryption program on the Internet without a munitions license. In February 1995 Bernstein, along with the Electronic Frontier Foundation, sued the U.S. Department of Justice, arguing that export controls are an unconstitutional prior restraint of speech.

The Justice Department requested that the suit be dismissed, arguing that computer software code is not speech, and that the courts do not have jurisdiction over national security. In April 1996, San Francisco, California U.S. District Court Judge Marilyn Hall Patel refused, ruling that software code is speech and while the court cannot address case-by-case rulings regarding national security it can address broader issues. "This court can find no meaningful difference between a computer language, and German or French," wrote Patel in her opinion.

In December 1996, Patel ruled that export restrictions then in place were "an unconstitutional prior restraint in violation of the First Amendment." However, it is unclear whether the ruling allows encryption software to be exported, or only a description of the algorithms. Further, since it only applies to restrictions in effect at the time of the ruling, the federal government may ignore the ruling and wait for another challenge to slightly different rules that went into effect in January 1997.

Bernstein now teaches mathematics at the University of Illinois at Chicago.

Sources: April 18, 1996, New York Times News Service article, "Suit over encryption software clears early hurdle," and December 19, 1996, Associated Press article, "U.S. export encryption restrictions unconstitutional, judge rules."