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1995-06-11
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EFF SUES TO OVERTURN CRYPTOGRAPHY RESTRICTIONS
First Amendment Protects Information about Privacy Technologies
February 21, 1995
San Mateo, California
In a move aimed at expanding the growth and spread of privacy and
security technologies, the Electronic Frontier Foundation is sponsoring a
federal lawsuit filed today seeking to bar the government from restricting
publication of cryptographic documents and software. EFF argues that
the export-control laws, both on their face and as applied to users of
cryptographic materials, are unconstitutional.
Cryptography, defined as "the science and study of secret writing,"
concerns the ways in which communications and data can be encoded to
prevent disclosure of their contents through eavesdropping or message
interception. Although the science of cryptography is very old, the
desktop-computer revolution has made it possible for cryptographic
techniques to become widely used and accessible to nonexperts.
EFF believes that cryptography is central to the preservation of
privacy and security in an increasingly computerized and networked
world. Many of the privacy and security violations alleged in the
Kevin Mitnick case, such as the theft of credit card numbers, the
reading of other people's electronic mail, and the hijacking of other
people's computer accounts, could have been prevented by widespread
deployment of this technology. The U.S. government has opposed such
deployment, fearing that its citizens will be private and secure from
the government as well as from other vandals.
The plaintiff in the suit is a graduate student in the
Department of Mathematics at the University of California at Berkeley
named Daniel J. Bernstein. Bernstein developed an encryption equation, or
algorithm, and wishes to publish the algorithm, a mathematical paper
that describes and explains the algorithm, and a computer program that
runs the algorithm. Bernstein also wishes to discuss these items at
mathematical conferences and other open, public meetings.
The problem is that the government currently treats cryptographic software
as if it were a physical weapon and highly regulates its dissemination. Any
individual or company who wants to export such software -- or to publish
on the Internet any "technical data" such as papers describing encryption
software or algorithms -- must first obtain a license from the State
Department. Under the terms of this license, each recipient of the licensed
software or information must be tracked and reported to the government.
Penalties can be pretty stiff -- ten years in jail, a million dollar
criminal fine,
plus civil fines. This legal scheme effectively prevents individuals from
engaging in otherwise legal communications about encryption.
The lawsuit challenges the export-control scheme as an ``impermissible
prior restraint on speech, in violation of the First Amendment.''
Software and its associated documentation, the plaintiff contends, are
published, not manufactured; they are Constitutionally protected works of
human-to-human communication, like a movie, a book, or a telephone
conversation. These communications cannot be suppressed by the government
except under very narrow conditions -- conditions that are not met by the
vague and overbroad export-control laws. In denying people the right to
publish such information freely, these laws, regulations, and procedures
unconstitutionally abridge the right to speak, to publish, to associate
with others, and to engage in academic inquiry and study. They also have
the effect of restricting the availability of a means for individuals to
protect their privacy, which is also a Constitutionally protected interest.
More specifically, the current export control process:
* allows bureaucrats to restrict publication without ever going to court;
* provides too few procedural safeguards for First Amendment rights;
* requires publishers to register with the government, creating in
effect a "licensed press";
* disallows general publication by requiring recipients to be
individually identified;
* is sufficiently vague that ordinary people cannot know what conduct
is allowed and what conduct is prohibited;
* is overbroad because it prohibits conduct that is clearly protected
(such as speaking to foreigners within the United States);
* is applied overbroadly, by prohibiting export of software that
contains no cryptography, on the theory that cryptography could be added
to it later;
* egregiously violates the First Amendment by prohibiting private
speech on cryptography because the government wishes its own opinions
on cryptography to guide the public instead; and
* exceeds the authority granted by Congress in the export control laws
in many ways, as well as exceeding the authority granted by the
Constitution.
If this suit is successful in its challenge of the export-control laws, it
will clear the way for cryptographic software to be treated like any other
kind of software. This will allow companies such as Microsoft, Apple,
IBM, and Sun to build high-quality security and privacy protection into
their operating systems. It will also allow computer and network users,
including those who use the Internet, much more freedom to build and
exchange their own solutions to these problems, such as the freely
available PGP encryption program. And it will enable the next generation
of Internet protocols to come with built-in cryptographic security and
privacy, replacing a sagging part of today's Internet infrastructure.
Lead attorney on the case is Cindy Cohn, of McGlashan and Sarrail in San
Mateo, CA, who is offering her services pro-bono. Major assistance has
been provided by Shari Steele, EFF staff; John Gilmore, EFF Board; and Lee
Tien, counsel to John Gilmore. EFF is organizing and supporting the case
and paying the expenses.
Civil Action No. C95-0582-MHP was filed today in Federal District
Court for the Northern District of California. EFF anticipates that
the case will take several years to win. If the past is any guide,
the government will use every trick and every procedural delaying
tactic available to avoid having a court look at the real issues.
Nevertheless, EFF remains firmly committed to this long term project.
We are confident that, once a court examines the issues on the merits,
the government will be shown to be violating the Constitution, and
that its attempts to restrict both freedom of speech and privacy will
be shown to have no place in an open society.
Full text of the lawsuit and other paperwork filed in the case is available
from the EFF's online archives. The exhibits which contain cryptographic
information are not available online, because making them publicly available
on the Internet could be considered an illegal export until the law is struck
down. The non-cryptographic exhibits and other documents including the
complaint, as well as a series of letters between Bernstein and various
government people regarding crypto export are available at:
http://www.eff.org/pub/EFF/Policy/Crypto/ITAR_export/Bernstein_case/
ftp.eff.org, /pub/EFF/Policy/Crypto/ITAR_export/Bernstein_case/
gopher.eff.org, 1/EFF/Policy/Crypto/ITAR_export/Bernstein_case
Press contact: Shari Steele, EFF: ssteele@eff.org, +1 202 861 7700.
For further reading, we suggest:
The Government's Classification of Private Ideas: Hearings Before a
Subcomm. of the House Comm. on Government Operations, 96th Cong., 2d
Sess. (1980)
John Harmon, Assistant Attorney General, Office of Legal Counsel,
Department of Justice, Memorandum to Dr. Frank Press, Science Advisor to
the President, Re: Constitutionality Under the First Amendment of ITAR
Restrictions on Public Cryptography (May 11, 1978). [Included in the
above Hearings; also online as http://www.eff.org/pub/EFF/Policy/Crypto/
ITAR_export/ITAR_FOIA/itar_hr_govop_hearing.transcript].
Alexander, Preserving High-Tech Secrets: National Security Controls on
University Research and Teaching, 15 Law & Policy in Int'l Business 173
(1983)
Cheh, Government Control of Private Ideas-Striking a Balance Between
Scientific Freedom and National Security, 23 Jurimetrics J. 1 (1982)
Funk, National Security Controls on the Dissemination of Privately
Generated Scientific Information, 30 U.C.L.A. L. Rev. 405 (1982)
Pierce, Public Cryptography, Arms Export Controls, and the First
Amendment: A Need for Legislation, 17 Cornell Int'l L. J. 197 (1984)
Rindskopf and Brown, Jr., Scientific and Technological Information and
the Exigencies of Our Period, 26 Wm. & Mary L. Rev. 909 (1985)
Ramirez, The Balance of Interests Between National Security Controls and
First Amendment Interests in Academic Freedom, 13 J. Coll. & U. Law 179
(1986)
Shinn, The First Amendment and the Export Laws: Free Speech on
Scientific and Technical Matters, 58 Geo. W. L. Rev. 368 (1990)
Neuborne and Shapiro, The Nylon Curtain: America's National Border and
the Free Flow of Ideas, 26 Wm. & Mary L. Rev. 719 (1985)
Greenstein, National Security Controls on Scientific Information, 23
Jurimetrics J. 50 (1982)
Sullivan and Bader, The Application of Export Control Laws to Scientific
Research at Universities, 9 J. Coll. & U. Law 451 (1982)
Wilson, National Security Control of Technological Information, 25
Jurimetrics J. 109 (1985)
Kahn, The Codebreakers: The Story of Secret Writing. New York:
Macmillan (1967) [Great background on cryptography
and its history.]
Relyea, Silencing Science: national security controls and scientific
communication, Congressional Research Service. Norwood, NJ:
Ablex Publishing Corp. (1994)
John Gilmore, Crypto Export Control Archives, online at
http://www.cygnus.com/~gnu/export.html
EFF Crypto Export Control Archives, online at
ftp.eff.org, /pub/EFF/Policy/Crypto/ITAR_export/
gopher.eff.org, 1/EFF/Policy/Crypto/ITAR_export
http://www.eff.org/pub/EFF/Policy/Crypto/ITAR_export/