From: dlv@bwalk.dm.com (Dr.Dimitri Vulis KOTM)
Date: Thu, 19 Dec 1996 09:36:36 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: EFF: Bernstein court declares crypto restrictions unconstitutiona
In-Reply-To: <199612190153.RAA08519@toad.com>
Message-ID: <Z2Z7yD10w165w@bwalk.dm.com>
MIME-Version: 1.0
Content-Type: text/plain


I find it highly amusing how John "asshole censor" Gilmore claims credit
for himself and his discredited EFF, as if they had anything to do with
Patel's ruling.

What a maroon.

John Gilmore <gnu@toad.com> writes:

> 	COURT DECLARES CRYPTO RESTRICTIONS UNCONSTITUTIONAL
> 	    Free Speech Trumps Clinton Wiretap Plan
>
> December 18, 1996
>
>                                 Electronic Frontier Foundation Contacts:
>
>                                      Shari Steele, Staff Attorney
>                                       301/375-8856, ssteele@eff.org
>
>                                      John Gilmore, Founding Board Member
>                                       415/221-6524, gnu@toad.com
>
>                                      Cindy Cohn, McGlashan & Sarrail
>                                       415/341-2585, cindy@mcglashan.com
>
> San Francisco - On Monday, Judge Marilyn Hall Patel struck down Cold War
> export restrictions on the privacy technology called cryptography.  Her
> decision knocks out a major part of the Clinton Administration's
> effort to force companies to build "wiretap-ready" computers,
> set-top boxes, telephones, and consumer electronics.
>
> The decision is a victory for free speech, academic freedom, and the
> prevention of crime.  American scientists and engineers will now be
> free to collaborate with their peers in the United States and in other
> countries.  This will enable them to build a new generation of tools
> for protecting the privacy and security of communications.
>
> The Clinton Administration has been using the export restrictions to goad
> companies into building wiretap-ready "key recovery" technology.  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.  Federal District
> Judge Patel's ruling knocks both the carrot and the stick out of
> Clinton's hand, because the restrictions were unconstitutional in the
> first place.
>
> The Cold War law and regulations at issue in the case prevented
> American researchers and companies from exporting cryptographic
> software and hardware.  Export is normally thought of as the physical
> carrying of an object across a national border.  However, the
> regulations define "export" to include simple publication in the U.S.,
> as well as discussions with foreigners inside the U.S.  They also define
> "software" to include printed English-language descriptions and
> diagrams, as well as the traditional machine-readable object code and
> human-readable source code.
>
> The secretive National Security Agency has built up an arcane web of
> complex and confusing laws, regulations, standards, and secret
> interpretations for years.  These are used to force, persuade, or
> confuse individuals, companies, and government departments into making
> it easy for NSA to wiretap and decode all kinds of communications.
> Their tendrils reach deep into the White House, into numerous Federal
> agencies, and into the Congressional Intelligence Committees.  In
> recent years this web is unraveling in the face of increasing
> visibility, vocal public disagreement with the spy agency's goals,
> commercial and political pressure, and judicial scrutiny.
>
> Civil libertarians have long argued that encryption should be widely
> deployed on the Internet and throughout society to protect privacy,
> prove the authenticity of transactions, and improve computer security.
> Industry has argued that the restrictions hobble them in building
> secure products, both for U.S. and worldwide use, risking America's
> current dominant position in computer technology.  Government
> officials in the FBI and NSA argue that the technology is too
> dangerous to permit citizens to use it, because it provides privacy to
> criminals as well as ordinary citizens.
>
> "We're pleased that Judge Patel understands that our national security
> requires protecting our basic rights of free speech and privacy," said
> John Gilmore, co-founder of the Electronic Frontier Foundation, which
> backed the suit.  "There's no sense in `burning the Constitution in
> order to save it'.  The secretive bureaucrats who have restricted these
> rights for decades in the name of national security must come to a
> larger understanding of how to support and preserve our democracy."
>
> 	Reactions to the decision
>
> "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," said Jim Bidzos, President of RSA Data Security, one of
> the companies most affected by crypto policy.
>
> "It's nice to see that the executive branch does not get to decide
> whether we have the right of free speech," said Philip Zimmermann,
> Chairman of PGP, Inc.  "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."  Mr. Zimmermann is a civil libertarian
> who was investigated by the government under these laws 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.
>
> "Judge Patel's decision furthers our efforts to enable secure electronic
> commerce," said Asim Abdullah, executive director of CommerceNet.
>
> Jerry Berman, Executive Director of the Center for Democracy and
> Technology, a Washington-based Internet advocacy group, hailed the
> victory.  "The Bernstein ruling illustrates that the Administration
> continues to embrace an encryption policy that is not only unwise, but
> also unconstitutional.  We congratulate Dan Bernstein, the Electronic
> Frontier Foundation, and all of the supporters who made this victory
> for free speech and privacy on the Internet possible."
>
> "The ability to publish is required in any vibrant academic discipline,"
> This ruling re-affirming our obvious academic right will help American
> researchers publish without worrying," said Bruce Schneier, author of
> the popular textbook _Applied Cryptography_, and a director of the
> International Association for Cryptologic Research, a professional
> organization of cryptographers.
>
> Kevin McCurley, President of the International Association for
> Cryptologic Research, said, "Basic research to further the
> understanding of fundamental notions in information should be welcomed
> by our society.  The expression of such work is closely related to one
> of the fundamental values of our society, namely freedom of speech."
>
> 	Effect of the decision
>
> Judge Patel's decision today 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.  However, the decision 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.
>
> 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 broswer, until another court case challenges that
> part of the restrictions.
>
> 	Background on the case
>
> The plaintiff in the case, Daniel J. Bernstein, Research Assistant
> Professor at the University of Illinois at Chicago, developed an
> "encryption algorithm" (a recipe or set of instructions) that he
> wanted to publish in printed journals as well as on the Internet.
> Bernstein sued the government, claiming that the government's
> requirements that he register as an arms dealer and seek government
> permission before publication was a violation of his First Amendment
> right of free speech.  This is required by the Arms Export Control Act
> and its implementing regulations, the International Traffic in Arms
> Regulations.
>
> In the first phase of this litigation, the government argued that
> since Bernstein's ideas were expressed, in part, in computer language
> (source code), they were not protected by the First Amendment.  On
> April 15, 1996, Judge Patel rejected that argument and held for the
> first time that computer source code is protected speech for purposes
> of the First Amendment.
>
> 	Details of Monday's Decision
>
> 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, she ruled that the government's "interest of
> national security alone does not justify a prior restraint." Under the
> Constitution, he is now 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.  When the
> Government acts legally to suppress protected speech, it must reduce
> the chance of illegal censorship by the bureacrats involved.  Her
> decision states, "Because the ITAR licensing scheme fails to provide
> for a time limit on the licensing decision, for prompt judicial review
> and for a duty on the part of the ODTC to go to court and defend a
> denial of a license, the ITAR licensing scheme as applied to Category
> XIII(b) acts as an unconstitutional prior restraint in violation of the
> First Amendment."
>
> She also ruled that the export controls restrict speech based on the
> content of the speech, not for any other reason.  "Category XIII(b) is
> directed very specifically at applied scientific research and speech on
> the topic of encryption."  The Government had argued that it restricts
> the speech because of its function, not its content.
>
> The judge also found that the ITAR is vague, because it does not
> adequately define how information that is available to the public
> "through fundamental research in science and engineering" is exempt
> from the export restrictions.  "This subsection ...  does not give
> people ... a reasonable opportunity to know what is prohibited." The
> failure to precisely define what objects and actions are being
> regulated creates confusion and a chilling effect.  Bernstein has been
> unable to publish his encryption algorithm for over three years.  Many
> other cryptographers and ordinary programmers have also been restrained
> from publishing because of the vagueness of the ITAR.  Brian
> Behlendorf, a maintainer of the popular public domain "Apache" web
> server program, stated, "No cryptographic source code was ever
> distributed by the Apache project.  Despite this, the Apache server
> code was deemed by the NSA to violate the ITAR."  Judge Patel also
> adopted a narrower definition of the term "defense service" in order to
> save it from unconstitutional vagueness.
>
> The immediate effect of this decision is that Bernstein now is free to
> teach his January 13th cryptography class in his usual way.  He can
> post his class materials on the Internet, and discuss the upcoming
> class's materials with other professors, without being held in
> violation of the ITAR.  "I'm very pleased," Bernstein said.  "Now I
> won't have to tell my students to burn their notebooks."
>
>
> ABOUT THE ATTORNEYS
>
> Lead counsel on the case is Cindy Cohn of the San Mateo law firm of
> McGlashan & Sarrail, who is offering her services pro bono.  Major
> additional pro bono legal assistance is being provided by Lee Tien of
> Berkeley; M. Edward Ross of the San Francisco law firm of Steefel,
> Levitt & Weiss; James Wheaton and Elizabeth Pritzker of the First
> Amendment Project in Oakland; and Robert Corn-Revere of the
> Washington, DC, law firm of Hogan & Hartson.
>
>
> ABOUT THE ELECTRONIC FRONTIER FOUNDATION
>
> The Electronic Frontier Foundation (EFF) is a nonprofit civil
> liberties organization working in the public interest to protect
> privacy, free expression, and access to online resources and
> information.  EFF is a primary sponsor of the Bernstein case.  EFF
> helped to find Bernstein pro bono counsel, is a member of the
> Bernstein legal team, and helped collect members of the academic
> community and computer industry to support this case.
>
> Full text of the lawsuit and other paperwork filed in the case is
> available from EFF's online archives at
>
>         http://www.eff.org/pub/EFF/Policy/Crypto/ITAR_export/Bernstein_case/
>
> The full text of Monday's decision will be posted there as soon as
> we scan it in.


---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps