From: Alan Olsen <root@nwdtc.com>
Date: Fri, 20 Jun 1997 00:30:03 +0800
To: cypherpunks@Algebra.COM
Subject: Crypto foes have day in court
Message-ID: <33A95E27.302D@nwdtc.com>
MIME-Version: 1.0
Content-Type: text/plain



http://www.news.com/News/Item/0,4,11674,00.html

Crypto foes have day in court 
By Alex Lash
June 18, 1997, 5:45 p.m. PT 

SAN FRANCISCO--Both sides of a landmark court battle
over the use of encryption made their final arguments here
today before a federal judge, who now will decide if the
government's restrictions on encryption exports go too far. 

The case focuses on Daniel Bernstein, a University of Illinois
math professor who sued the government two years ago as a
graduate student when he was not allowed to publish his
Snuffle encryption program on the Internet without an export
license. But the case extends to the all Internet users, who
are coming to rely more on privacy and security for electronic
correspondence and transactions. Strong encryption is
considered necessary to provide that security. 

On the other hand, law enforcement officials are worried that
the unchecked spread of strong encryption will make
communications by criminals impossible to track and decode. 

U.S. District Court Judge Marilyn Patel has already proven
sympathetic to Bernstein's case. In April 1996, she ruled that
software code is free speech and therefore protected under the
First Amendment. From that, she said in December that the
government's regulations created unconstitutional "prior
restraint" of free expression, meaning the creation of an
atmosphere that made the free exchange of protected ideas
difficult, if not impossible. 

Patel can now take as much time as she wants to hand down
her decision. She must decide if the government regulations
violate constitutional or statutory standards. The judge must
also decide what type of relief to grant Bernstein and if that
relief--in the form of unimpeded export of encryption
software--should extend to everyone. 

Since her December ruling, the federal export rules have been
switched from the auspices of the State Department to the
Commerce Department's Bureau of Export Administration.
Patel called the lead attorneys for Bernstein and for the
government together today to determine if she should
reconsider her December ruling in light of the shift. 

"We think [the issues] are fundamentally the same," Cindy
Cohn, lead attorney for Professor Bernstein, told the judge.
"All the things you found wrong before are still up in the air." 

Government attorney Anthony Coppolino essentially agreed,
although he claimed the new rules, which were mandated by a
presidential executive order, cleared up some of the confusion
caused by the State Department rules. "The president's order
of transfer made clearer that we want to control the encryption
function, not the ideas," he said. 

Despite Judge Patel's differing perspective, Coppolino
maintained that the government's rules, which require
publishers of strong encryption software to apply for a
government license, were aimed at controlling the unimpeded
spread of "easy-to-access, easy-to-use" encryption but not
the spread of intellectual expression. 

Coppolino nonetheless seemed resigned to yet another
"adversarial" decision, as he called Patel's previous rulings,
and argued that if the judge rules in favor of
Bernstein--which seems likely given her remarks
today--her interpretation should be as narrow as possible.
Coppolino said that a national injunction on the regulations
would be overkill. 

"You can clearly fashion relief [for Bernstein] without
throwing it open on a nationwide basis," Coppolino contended.

Cohn, who has argued the case pro bono with the help of the
Electronic Frontier Foundation, countered that Bernstein's job
requires not just his own free expression but free
communication in general. 

"We think that everyone else should be protected," she
argued to Patel. "There's no way that Bernstein can speak
freely if no one else can speak back." 

The encryption battle is also being fought in Congress, where
several bills aim to strike down the same federal export rules
that Bernstein is challenging, while one bill, sponsored by
Senators John McCain (R-Arizona) and Bob Kerrey
(D-Nebraska), seeks to impose domestic controls for the
first time.

Introduced yesterday in the Senate, McCain-Kerrey seeks to
mandate the use of key recovery--a system that allows law
enforcement officials to intercept and decode encrypted
electronic communications--for all government products and
government-funded networks. It also aims to tie the domestic
use of digital certificates--a type of electronic ID card that
verifies the legitimacy of an electronic transmission--to key
recovery.

Under the plan, users will not be able to obtain a digital
certificate from a government-licensed "certificate authority"
unless they make their private encryption keys available to
law enforcement when necessary.