Date: Sun, 22 Dec 1996 08:46:31 +0300 (MSK) From: "Dmitri V. Lukyanov" <ldv@long.yar.ru> To: security@freebsd.org Subject: (fwd) FYI: Crypto Restrictions Unconstitutional - US Court Message-ID: <Pine.LNX.3.95.961222083946.787A-100000@long.yar.ru>
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Hi, Is this the end of FreeBSD password encryption problems? From: Mark Hemment <markhe@nextd.demon.co.uk> Date: Fri, 20 Dec 1996 18:50:21 +0000 (GMT) Subject: FYI: Crypto Restrictions Unconstitutional - US Court I was forwarded this today. The ruling does not affect export, but it's interesting that "computer source code is protect speech for purposes of the First Amendment"! This is slightly off-topic, although it does relate to Linus's move to the US and encryption in the Linux kernel. Regards, markhe ===================================================================== ======= SUBJECT: COURT DECLARES CRYPTO RESTRICTIONS UNCONSTITUTIONAL SOURCE: Newsbytes via First! by Individual, Inc. DATE: December 19, 1996 INDEX: [15] - --------------------------------------------------------------------- - ------- WASHINGTON, DC, U.S.A., 1996 DEC 19 (NB) via Individual Inc. -- By Bill Pietrucha. Cold War export restrictions on cryptography received a major blow this week when a federal judge ruled that the Arms Export Control Act is an unconstitutional prior restraint on free speech. The ruling, hailed by the computer industry and privacy advocates, was a setback for the Clinton Administration's efforts to build wiretap-ready" computers, set-top boxes, telephones, and consumer electronics. The case focused on Daniel J. Bernstein, a research assistant professor at the University of Illinois at Chicago, who developed an encryption algorithm, or set of instructions. Bernstein planned to publish his encryption algorithm, called Snuffle, in academic journals and on the Internet. Snuffle scrambles, or encodes, telephone and computer messages that move across computer networks and the Internet. The messages can be read by using Unsnuffle, Bernstein's decryption program. The federal government, however, told Bernstein he would have to register as an arms dealer and seek government permission before publication, as is required by the Arms Export Control Act and the International Traffic in Arms Regulations. Bernstein sued the government, claiming the government's requirements violated his First Amendment right of free speech. Earlier this year, the government argued that since Bernstein's ideas were expressed, in part, in computer language, or source code, they were not protected by the First Amendment. US District Court Judge Marilyn Hall Patel rejected the government's argument on April 15 of this year, and held for the first time that computer source code is protected speech for purposes of the First Amendment. On Monday, Judge Patel ruled that the Arms Export Control Act is an unconstitutional prior restraint on speech, because it requires Bernstein to submit his ideas about cryptography to the government for review, to register as an arms dealer, and to apply for and obtain from the government a license to publish his ideas. Using the Pentagon Papers case as precedent, Judge Patel ruled that the government's "interest of national security alone does not justify a prior restraint." Under the Constitution, she said, Bernstein now is free to publish his ideas without asking the government's permission first. Judge Patel also held that the government's required licensing procedure fails to provide adequate procedural safeguards. The immediate effect of Judge Patel's decision is that Bernstein now is free to teach his January 13th cryptography class, and can post his class materials on the Internet, Mike Godwin, a lawyer for the Electronic Frontier Foundation, said. "I'm very pleased," Bernstein said. "Now I won't have to tell my students to burn their notebooks." The long-range effects, however, still are cloudy, since Judge Patel's decision only legally applies to Prof. Bernstein. Other people and companies are still technically required to follow the export restrictions when speaking or publishing about cryptography, or when speaking or publishing cryptographic source code. The decision, however, sends a strong signal that if the government tried to enforce these rules against other people, the courts are likely to strike them down again, Godwin said. Judge Patel has specifically not decided whether the export controls on object code, the executable form of computer programs which source code is automatically translated into, are constitutional. Existing export controls will continue to apply to runnable software products, such as Netscape's browser, until another court case challenges that part of the restrictions. In a November Executive Order, President Clinton offered limited administrative exemptions from these restrictions to companies which agree to undermine the privacy of their customers, Godwin said. "Federal District Judge Patel's ruling knocks both the carrot and the stick out of Clinton's hand," he said, "because the restrictions were unconstitutional in the first place." Jim Bidzos, president of RSA Data Security, one of the companies most affected by the government's cryptography policies, said, "this is a positive sign in the crypto wars, the first rational statement concerning crypto policy to come out of any part of the government." "It's nice to see that the executive branch does not get to decide whether we have the right of free speech," PGP Inc. chairman Philip Zimmermann said. "It shows that my own common sense interpretation of the constitution was correct five years ago when I thought it was safe to publish my own software, PGP. If only US Customs had seen it that way." Zimmermann was investigated by the government when he wrote and gave away a program for protecting the privacy of e-mail. His "Pretty Good Privacy" program is used by human rights activists worldwide to protect their workers and informants from torture and murder by their own countries' secret police. Jerry Berman, executive director of the Center for Democracy and Technology, a Washington-based Internet advocacy group, hailed the victory, saying "the Bernstein ruling illustrates that the Administration continues to embrace an encryption policy that is not only unwise, but also unconstitutional." The full text of the lawsuit and other paperwork filed in the case is available from EFF's online archives at http://www.eff.org on the Internet. (19961219/Press Contact: Shari Steele, Electronic Frontier Foundation, 301-375-8856; e-mail ssteele@eff.org Reported by Newsbytes News Network at http://www.newsbytes.com) "The Pulse of the Information Age" Newsbytes News Network http://www.newsbytes.com 24-hour computer, telecom and online news [12-19-96 at 15:00 EST, Copyright 1996, Newsbytes News Network., File: n1219004.6by] Copyright (c) 1996 by INDIVIDUAL, Inc. All rights reserved.
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