IP: Wash Post editorial on Encryption

[Dave Farber <farber@cis.upenn.edu>]

>
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>http://www.washingtonpost.com/wp-srv/WPcap/1999-05/10/022r-051099-idx.html
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>Encryption and Free Speech
>Monday, May 10, 1999; Page A22=20
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>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
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>                            =A9 Copyright 1999 The Washington Post Company
>