The executive order signed by President Clinton Friday to ease encryption export restrictions may impact export control lawsuits now in federal court, and has raised concern among followers of encryption policy that the order could affect future cases.
"We hope it doesn't affect the court cases or we'll be stuck chasing a moving target in the court system," said Alan Davidson, staff counsel for the Center for Democracy and Technology. "The Commerce Department will say the rules have changed, and then for us, it's back to square one."
Foremost among the cases is that of Daniel J. Bernstein, who has sued several federal agencies on grounds that his First Amendment rights were violated when he was required to obtain an export license from the State Department in order to publish the software code for his encryption program, Snuffle. The federal judge in the US district court case in San Francisco, Marilyn Hall Patel, is expected to rule in the coming weeks on whether Bernstein can teach his crypto plan at the University of Illinois at Chicago in January. Patel also will rule on a partial summary judgment motion to declare the export laws unconstitutionally broad and procedurally flawed.
"The judge has not been formally notified of the executive order, so it probably won't enter into this case, except in an informal way," said John Gilmore, co-founder of the Electronic Frontier Foundation, and technical adviser to Bernstein's attorneys. "I see the inclusion of some of the items in the executive order as more of a move to bolster the DOJ's legal arguments by making them come from an official source - the president, and eventually printed regulations."
Anthony Coppolino, the Department of Justice defense lawyer in the case, declined to comment.
In another export control lawsuit, Karn v. US Department of State, the government has already requested permission from the federal court of appeals to file briefs addressing the new encryption regulations once they come out, Gilmore said. Phillip Karn, who was denied permission to export two diskettes containing encryption source code from the book Applied Cryptography by Bruce Schneier, is appealing his case against the State Department.
"I could see part of the new regulations even turning to the advantage of Phil Karn's lawyers," Gilmore said. "The unwritten policy that Karn was complaining about - that books are exportable, but ASCII images of books are not - is now written down and intended to become part of the regulations."
But others say the executive order will not change the dynamics in the cases. "It probably will not change much," said Stewart Baker, an attorney specializing in international and technology law. "Many of the changes in the executive order ... were aimed at making sure the arguments the government has already made in Karn and Bernstein remain true."
One thing appears to be true - that the White House had its eye on the pending cases when it drafted the executive order. "We knew it was an important case all along," Gilmore wrote of Bernstein in an email. "What is 100 percent clear now is that they know it, too."
