NET NEWS: Court Upholds Freedom of Crypto Speech

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Science  21 May 1999:
Vol. 284, Issue 5418, pp. 1231
DOI: 10.1126/science.284.5418.1231c

In a decision hailed as a victory for scientific freedom, a federal appeals court has upheld a math professor's argument that U.S. laws restricting the export of encryption codes are unconstitutional.

Citing national security concerns, the Clinton Administration currently bans software companies from selling, beyond U.S. borders, strong encryption software—codes for scrambling messages (such as e-mail) that can be read only by a recipient with a key. Daniel Bernstein, a math professor at the University of Illinois, Chicago, ran into these rules as a grad student at Berkeley in 1992 when he wanted to share his Snuffle cryptography program with colleagues. The State Department told Bernstein that because it considered his code to be in the same category as weapons, he could not post it on the Internet or discuss it at conferences.

The AAAS (Science's publisher) as well as software firms and Internet civil rights groups such as the Electronic Frontier Foundation have championed Bernstein's case, arguing that the export rules restricted his First Amendment right to free speech. On 6 May, the 9th U.S. Circuit Court of Appeals in San Francisco agreed, upholding a lower court decision in Bernstein's favor. The court found that “cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs” and that the export rule “directly jeopardizes scientific expression” as well as the public's right to privacy.

The ruling doesn't mean Bernstein can now share his code, as the government may ask the court to stay the decision pending appeal. Observers expect the case to wind up before the Supreme Court.

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