Attorneys who last year won a landmark federal appeals court ruling against government export controls on encryption were back in court Wednesday, arguing that the Clinton administration's policy is just as unconstitutional under the Commerce Department's aegis as it was when the State Department administered it.
In December, US District Court Judge Marilyn Hall Patel ruled that encryption software is a form of speech protected by the First Amendment. She found that the crypto-export restrictions then in force - codified in the Arms Export Control Act - unconstitutionally limited the speech of University of Illinois-Chicago mathematics professor Daniel Bernstein, the author of an encrypted email program called Snuffle. But only two weeks after Patel's ruling, the White House shifted ground on its policy, shifting responsibility for crypto exports from the State Department to the Commerce Department's Export Administration Bureau.
Bernstein's attorney, Cindy Cohn, told Patel on Wednesday that the new policy still violated Bernstein's First Amendment rights and that the Commerce Department is exceeding its regulatory function and should be enjoined.
Expressing mystification about why encryption export regulations are an issue at all, Patel seemed intent on reaffirming her free-speech ruling.
"Is there any reason my finding on the substantive issue of free speech should change under the new regulations?" she asked Cohn and the Justice Department lawyer, Anthony Coppolino.
"No, I don't believe so," answered Cohn.
Coppolino, who appeared to concede he was fighting a losing battle on the First Amendment issue, argued half-heartedly that the government was attempting to control technology, not informational speech. He claimed that the regulations, which limit the electronic export of encryption code stronger than 56 bits, but place no limitations on printed copies of any code, were simply an attempt to keep criminals from having easy access to potentially harmful technologies.
Patel didn't bite.
"You can export the same code on paper wherever you want," she said. "Doesn't it make sense that that'll only deter 13-year-olds and people who don't really want to take time to load the code, but that people who really want it - say terrorists - will take the time to enter it by hand?"
Conceding that he had all but lost on that issue, Coppolino maintained that a nationwide injunction on the Commerce Department would be entirely inappropriate. "The plaintiffs are trying to find a backdoor way to get around restrictions that are being argued in Congress."
There are currently three bills on encryption circulating in Congress.
