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IP: Big win for the First amendment!

From: Dave Farber <farber () cis upenn edu>
Date: Thu, 06 May 1999 18:35:31 -0400

Date: Thu, 6 May 1999 18:24:18 -0400 (EDT)
From: "Michael Froomkin - U.Miami School of Law" <froomkin () law miami edu>
To: Dave Farber <farber () cis upenn edu>
Subject: Big win for the First amendment!

-- 
A. Michael Froomkin   |    Professor of Law    |   froomkin () law tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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   <title>Statement on the Bernstein decision</title>
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<h1>
Statement on the Bernstein decision</h1>
The <a 
href="http://www.ce9.uscourts.gov/web/newopinions.nsf/f606ac175e010d64882566eb00658118/febd2452a8a4d79b8825676900685b71?OpenDocument";>Ninth
Circuit's decision in the Bernstein case</a> is a major victory for the
First Amendment in the computer age. It confirms that just because you
use specialized tools to speak, like a computer, or a specialized language
to communicate, like a programming language, you do not therefore put yourself
outside the scope of the First Amendment. These propositions are fundamental
to free speech, and to freedom of association, in the computer age.&nbsp;
And while it is wonderful that the Court of Appeals ruled as it did, it
is a pity that the Justice Department's stonewalling on this issue made
such a ruling necessary in the first place.
<p>Today the Ninth Circuit-the court of appeals with jurisdiction over
Silicon Valley-holds that cryptographic source code is protected speech.
The court held, correctly, that the US Government's unconstitutionally
prevents the export of cryptographic source code with a system of speech
licenses. The court held that preventing cryptographers such as Daniel
Bernstein from using the Internet to share their work with colleagues around
the world is an unconstitutional prior restraint on speech, one hedged
with completely inadequate procedural safeguards.
<p>This decision is especially important because U.S. government representatives
openly admit that they have been using the export control laws to retard
the domestic use of cryptographic software. This decision, which I hope
will be upheld by the Supreme Court, will be the first step towards greatly
increased use of cryptography in domestic products, and enhanced personal
privacy for all Americans.
<p>Perhaps the most important aspect of this decision is that the appeals
court recognizes the critical connection between the regulation of cryptography
and our modern lives:
<blockquote>"we note that the government's efforts to regulate and control
the spread of knowledge relating to encryption may implicate more than
the First Amendment rights of cryptographers. In this increasingly electronic
age, we are all required in our everyday lives to rely on modern technology
to communicate with one another. This reliance on electronic communication,
however, has brought with it a dramatic diminution in our ability to communicate
privately."</blockquote>
As the court recognized, the regulation of cryptography concerns us all
in our everyday existence, at a time when the ability of governments and
others to observe our everyday activities is at an all-time high. Only
the deployment of consumer cryptography offers the ordinary citizen the
technical means to attempt to carve out a zone of privacy in an increasingly
monitored world. The citizen's right to protect privacy in this manner
implicates not just the First amendment but also the Fourth amendment and
the right to speak anonymously..
<p>The court was thus right on target when it noted that the regulation
of cryptography "touches on the public interest broadly defined.".
<p>A second important aspect of this decision is that the court recognized
the effect of technical change on the first amendment, and rejected suggestions
that just because speech has side effects it somehow loses its protected
status:
<blockquote>"the government's argument, distilled to its essence, suggests
that even one drop of "direct functionality" overwhelms any constitutional
protections that expression might otherwise enjoy. This cannot be so. The
distinction urged on us by the government would prove too much in this
era of rapidly evolving computer capabilities. The fact that computers
will soon be able to respond directly to spoken commands, for example,
should not confer on the government the unfettered power to impose prior
restraints on speech in an effort to control its "functional" aspects.
The first Amendment is concerned with expression, and we reject the notion
that the admixture of functionality necessarily puts expression beyond
the protections of the Constitution."</blockquote>
It is important to note, however, that this decision does not apply directly
to object code (actual ready-to-run programs) because Bernstein only sought
to export source code. Thus, even if you live in California, it doesn't
mean you can ship a compiled 3DES toolkit anywhere in the world tomorrow
morning.
<p>If the government appeals, the issue is very likely to go to the supreme
Court for resolution given the government's claim that national security
might be affected. It is likely that the government will request and receive
a stay order if it chooses to appeal.
<p>Congratulations to Cindy Cohn and the rest of the Bernstein legal team!
<p>--
<br>Michael Froomkin
<br>Professor of Law
<br>U.Miami School of Law
<br><a href="mailto:froomkin () law miami edu">froomkin () law miami edu</a>
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IP: Big win for the First amendment! Dave Farber (May 06)