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IP: Wash Post editorial on Encryption
From: Dave Farber <farber () cis upenn edu>
Date: Mon, 10 May 1999 15:06:54 -0400
http://www.washingtonpost.com/wp-srv/WPcap/1999-05/10/022r-051099-idx.html Encryption and Free Speech Monday, May 10, 1999; Page A22=20 A FEDERAL APPEALS court has declared unconstitutional government regulations designed to restrict the export of certain types of encryption software. The decision on this arcane issue is important. It strikes a serious blow against the government's export-control regime, which has been increasingly controversial as encryption programs have become crucial to computer security, online commerce and data-integrity applications. The government regards encryption algorithms as munitions and -- to the dismay of high-tech industry and privacy activists -- restricts the export of strong cryptography. The current case arose when Daniel J. Bernstein, then a graduate student in California, sought to publish the source code for a cryptographic system he called "Snuffle." The government, however, insisted he needed a license. Computer source code is a form of writing that has no easy analogue in First Amendment law. It is text written by people that can be transformed by computers into the executable files that we call programs; it is speech that actively does things. Source code is primarily a vehicle for people to instruct computers, a dialect that programmers can speak and that computers can understand. But it also is undeniably expressive of scientific ideas. Indeed, source code is routinely shared by people to communicate how certain computer-related tasks can best be accomplished. Is source code speech or is it a device? The government's view is that source code on paper is expressive speech but that when on a disk (or on paper that can be scanned by a computer), it becomes a device whose purpose is not communicative but functional. This distinction is more than a bit strained, and a divided 9th Circuit panel now has rejected the argument that source code's functionality makes it regulable. It held that the export controls, at least as applied to source code, are "an impermissible prior restraint on speech" that attack scientific expression. This may well be analytically correct, but it is, nonetheless, troubling. The export-control regime has all kinds of problems -- not the least of which is that encryption is now so widely available that the Pandora's box is open. But the government's interest in controlling the spread of strong encryption is a real one that cannot be dismissed blithely, nor can an export-control system that excludes source code be very meaningful. One of the panel's judges, Myron Bright, suggested in a frustrated concurrence that "the importance of this case suggests that it may be appropriate for review by the United States Supreme Court." Indeed, it would be well worth the high court's considering where the precise line between speech and machine really is.=20 =A9 Copyright 1999 The Washington Post Company
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