From: John Gilmore <gnu@toad.com>
Date: Wed, 8 Jan 1997 14:56:16 -0800 (PST)
To: cypherpunks, gnu
Subject: URGENT: Fri 10Jan 9:30AM Wash,DC: Karn appeals, come to the hearing!
Message-ID: <199701082255.OAA20606@toad.com>
MIME-Version: 1.0
Content-Type: text/plain


[Friends of crypto freedom should definitely attend.  The courtroom
holds approximately 50 people, and we'd like to fill it.  Show Judges
Williams, Ginsburg and Rogers the importance of the case.  This is the
first time that a crypto export case has hit a Court of Appeals, and
your rights are very much at stake here.

If you're in the DC metropolitan area, come on out on Friday morning!
Show Phil Karn you support him as he challenges the export controls.  --John]

  RESEARCHER KARN APPEALS, SEEKING TO OVERTURN IRRATIONAL ENCRYPTION RULES
        "Books are OK to publish, floppies are not" policy

Washington, January 8 - Laywers for researcher Philip R. Karn, Jr.
will argue in court this Friday that Government restrictions on
distribution of encryption software violate the First and Fifth
Amendments of the Constitution, and are "arbitrary, capricious and
invalid" regulations.

This week's hearing, on January 10, 1997 at 9:30AM in the US Court of
Appeals for the District of Columbia Circuit, is open to the public at
333 Constitution Avenue, Washington DC.

The Government will argue that its rules are its own business, which
courts should not oversee, and that it is legitimate to regulate free
speech and publication when the government is uninterested in
suppressing the content thereof.  (The government actually has a
strong interest in suppressing the public's ability to understand and
deploy strong cryptography, but has managed to convince the district
court of the opposite.)

The lawsuit is complicated by the Government's introduction last month
of new encryption regulations.  President Clinton ordered on November
15 that the regulations be moved from the State Department to the
Commerce Department.  Over Christmas, the Clinton Administration
published its new Commerce Department regulations, which are
effectively identical to the State Department regulations, and put
them into immediate effect.  Mr. Karn's case only named the State
Department.  In an unusual switch, the Government is arguing that it
should be able to replace the State Department with the Commerce
Department as a defendant, in the hope of keeping the case alive.
(Most defendants would be happy to have the case disappear.  The State
Department appears to be hoping they will get a better decision in
this case than in related cases.)

The State Department regulations at issue were struck down in December
by Judge Marilyn Hall Patel in a similar case brought by Professor
Daniel Bernstein in San Francisco.  Judge Patel called the regulations
a "paradigm of standardless discretion" which required Americans to
get licenses from the government to publish information and software
about encryption.  No court has yet ruled on the new Commerce
Department regulations, which include the same provisions that were
declared unconstitutional.

"This case clearly raises an issue of fundamental importance to
cryptographers and computer programmers generally," said Kenneth Bass,
lead attorney in the case.  "The fundamental issue is how the courts
will treat computer programs.  Books are entitled to the full
protection of the First Amendment, but the trial judge in this case
decided that source code on a diskette does not enjoy that same
protection.  Programmers immediately recognize the utter irrationality
of this distinction.  We now will see whether the appeals courts will
also see it that way."

"Phil Karn's case illustrates both the irrationality of the encryption
rules and the depths of the bureaucratic mazes which protect them,"
said John Gilmore, co-founder of the Electronic Frontier Foundation,
which backed the suit.  "The idea that the First Amendment protects
the author of a book, but not the author of an identical floppy disk,
is ridiculous.  All books, magazines, and newspapers are written on
computers today before print publication, and many are also published
online.  Yet here we have Government lawyers not only defending their
right to regulate machine-readable publication, but also arguing that
the courts are not permitted to re-examine the issue.  Their argument
amounts to `Trust us with your fundamental liberties'.  Unfortunately,
a decade of NSA actions have amply demonstrated that they are happy to
sacrifice fundamental liberties when it gives them an edge in some
classified spy program.  Unless there's a clear and present danger to
our nation's physical security (which we have seen no evidence of),
our citizens' right to speak and publish freely is much more important
to American national security than any top-secret program."

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 and communications 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.

	Background on the case

Mr. Philip Karn is an engineer with a wide and varied background in
radio and wire communications.  He has given many years of volunteer
work in the amateur radio service, amateur satellite service, and in
the Internet community.  He is the author of the freely available
"KA9Q" internet software for DOS machines, which forms the basis of
many amateur radio experiments as well as several successful
commercial products.  He has written and given away various
cryptographic software, including one of the world's fastest versions
of the Data Encryption Standard (DES).  Phil also did the initial
research into encrypting Internet traffic at the packet level.  Mr.
Karn's home page is at http://www.qualcomm.com/people/pkarn/ .

In 1994, author Bruce Schneier published _Applied Cryptography_, a
best-selling encryption textbook which included some fifty pages of
encryption source code listings, including very strong algorithms such
as "Triple-DES".  As an civil libertarian, Mr. Karn asked the State
Department whether the book could be exported; they replied that it
was in the public domain and could therefore be exported.  Mr. Karn
then created a floppy disk containing the source code from the book,
and asked if the floppy could be exported.  The State Department
determined in May 1994 that the floppy was a munition.  Mr. Karn
would need to register as an arms dealer to be able to export the
disk.

After several administrative appeals, Mr. Karn filed suit in September
1995.  The suit asks a court to declare that the decision was invalid
because the distinction between publication on paper and publication
on floppies has no rational basis, and because the decision violates
Mr. Karn's right to publish the floppy.

Judge Charles R. Richey dismissed the case in a strongly-worded
36-page opinion.  "The plaintiff, in an effort to export a computer
diskette for profit, raises administrative law and meritless
constitutional claims because he and others have not been able to
persuade the Congress and the Executive Branch that the technology at
issue does not endanger the national security. This is a "political
question" for the two elected branches under Articles I and II of the
Constitution."  Mr. Karn, whose effort was motivated by concern for
civil rights rather than profit, appealed.  This week's hearing is the
first public hearing in his appeal case.

The regulations at issue in the case, which prevent American
researchers and companies from exporting cryptographic software and
hardware, are a relic of the Cold War.  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.

ABOUT THE ATTORNEYS

Lead counsel on the case are Kenneth C. Bass III and Thomas J. Cooper
of the Washington law firm of Venable, Baetjer, Howard & Civiletti,
who are offering their services pro bono.

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 funding the expenses in Mr. Karn's case.

The full text of the lawsuit and other paperwork filed in the case is
available from Phil Karn's web site at:

        http://www.qualcomm.com/people/pkarn/export/index.html

SOURCE: Electronic Frontier Foundation

    CONTACT:  Ken Bass, lead attorney, +1 202 962 4890, kbass@venable.com;
or Shari Steele, EFF Staff Attorney, +1 301 375 8856, ssteele@eff.org;
or John Gilmore, EFF Board Member, +1 415 221 6524, gnu@toad.com