In a major follow-up to a landmark challenge to the US government's throttling of encryption exports, a federal judge in San Francisco has ruled that the policy remains unconstitutional despite revisions enacted late last year.
The ruling came in the case of University of Illinois mathematician Daniel Bernstein, who developed an encrypted email program called Snuffle that the government refused permission to export.
US District Court Judge Marilyn Hall Patel expanded in a 32-page ruling Monday on an opinion issued last December: The crypto-export controls, which for decades have clamped tight limits on the strength of cryptography that US makers can sell abroad, violate First Amendment guarantees on free speech.
"By the very terms of the encryption regulations, the most common expressive activities of scholars - teaching a class, publishing their ideas, speaking at conferences, or writing to colleagues over the Internet - are subject to a prior restraint by the export controls," Patel wrote.
Patel also granted Bernstein something more tangible - a permanent injunction against government enforcement of the export regulations against him or others seeking to sell, use, or discuss the Snuffle program.
In her original ruling, Patel held 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 Bernstein's speech. But only two weeks after Patel's ruling, the White House shifted ground on its policy, moving responsibility for crypto exports from the State Department to the Commerce Department's Export Administration Bureau.
In her opinion Monday, Patel said that changing the agency responsible for the policy made little difference to the underlying issues in the case.
The government did win a significant concession in the ruling, however. During arguments in June, the Justice Department asked Patel to limit the force of her ruling to her Northern California jurisdiction, rather than making it nationwide. Conceding that the government may well appeal her ruling, Patel agreed, citing "the legal questions at issue are novel, complex, and of public importance."
That blemish aside, Bernstein lawyer Cindy Cohn called the ruling a "very big victory" for free-speech advocates. "This brings us a step closer to people being able to freely publish ideas about encryption," she said.
Reuters contributed to this report.
