A ruling that federal export controls on encryption are unconstitutional may not loosen export controls any time soon, but it offers badly needed ammunition in the fight to make encryption technologies free across borders.
"It doesn't set a legal, binding precedent, but now the US government has got some risk in prosecuting someone for exporting encryption," said Cindy Cohn, the lead attorney for the plaintiff in the case. "Whether they take that risk remains to be seen."
Critics of the Clinton administration's encryption policy agreed that the ruling's impact will be felt over time. "The ruling further undercuts the thinking that the government can keep ideas in the United States, but we still have a long way to go," said Alan Davidson, staff counsel of the Center for Democracy and Technology, which monitors encryption policy.
The ruling came Monday in a US district court in San Francisco regarding the case of University of Illinois mathematician Daniel Bernstein, who developed an encrypted email program called Snuffle, for which the government refused export permission. Judge Marilyn Hall Patel, in a 32-page ruling expanded from December, said the government can't block the export of Bernstein's program because it is a literary work. Such a move would violate the First Amendment.
Patel further called the government to task for moving encryption export licenses from the State to Commerce Department in December. "The government cannot avoid the constitutional deficiencies of its regulations by rotating oversight of them from department to department," Patel wrote.
Patel granted Bernstein a permanent injunction against government enforcement of the export regulations against him or others seeking to sell, use, or discuss the Snuffle program. The decision, however, was narrowly tailored, addressing only Bernstein's case and not the broader issue of encryption export.
"In the long run, the decision is more significant," said Stewart Baker, an international lawyer who follows encryption policy. "If its reasoning is upheld, it will either overturn or severely undermine the administration's export control regime. While it arguably can be limited to academic rather than commercial speech, this Supreme Court is less and less inclined to treat commercial speech as unprotected by the Constitution."
The Justice Department said Tuesday in a statement that it is "considering what further legal measures it will take" but that "export controls on encryption software remain in place."
Next Wednesday, the Senate subcommittee on Technology, Terrorism, and Government Information will hold a hearing on a bill sponsored by Senators John McCain (R-Arizona) and Bob Kerrey (D-Nebraska) that would uphold current export restrictions on encryption while developing a system for domestic key recovery of encrypted communications. The committee is expected to back the McCain/Kerrey plan.
"When we go to Congress now, we can say, not only is this policy unwise, but it could be unconstitutional," said Davidson.
