Crypto appeal coming up

The First Amendment will come up against security issues in the high-tech arena once again on Monday, when the Justice Department appeals a federal judge's decision that U.S. restrictions on the export of encryption software are unconstitutional.

District court judge Marilyn Patel ruled in August that software source code is speech and therefore is protected under the First Amendment. She ruled that the government's licensing program--which treats strong encryption software as a possible weapon--creates an unconstitutional restraint on a software maker's right to free speech.

"Because [software] is free speech, it doesn't mean the government can't regulate it," said Lee Tien, cocounsel for Daniel Bernstein, a University of Illinois at Chicago math professor who brought the case against the government in 1995. "But it does mean that when you do regulate it, you have to follow First Amendment rules."

Bernstein wanted to distribute his Snuffle encryption program for academic purposes but was told that he needed an arms license to do so.

Despite the overwhelming victory Judge Patel handed Bernstein in August, encryption advocates are by no means out of the woods as the case moves to the appellate level. Appellate courts are not bound by the decisions they review, which means the three judges hearing the government's appeal are free to overturn Patel's ruling in its entirety.

Government attorneys are counting on the judges with the Ninth Circuit U.S. Court of Appeals to see the issue of export control differently.

"I wouldn't characterize [the appeal] as a slam dunk for either side, but there are substantial arguments on our side, and that's what we've presented to the court," said Scott McIntosh, the Justice Department attorney who will argue the government's case on Monday. "The government's position is that these regulations are constitutional and we certainly hope to persuade the Court of Appeals to see it in the same light."

Pending the appeal, Bernstein agreed to refrain from publishing unregulated encryption for export. Others are barred from doing so as well, until the appellate court rules. But it could be the calm before the storm. Patel's decision threw into question the U.S. government's efforts to limit the spread of strong encryption, which law enforcement officials claim can be used by criminals and terrorists to hide their communications, posing a threat to public safety.

Justice Department lawyers are sure to make that point on Monday, as evidenced by language in a brief filed to the appeals court: "What is required is a more thoughtful First Amendment analysis, one that acknowledges...[encryption's] non-informational capacity to control the physical operation of computers in ways that can compromise this country's national security and foreign policy interests."

Judge Patel originally granted an injunction against the government's rules, which could have let anyone distribute encryption at any strength. She agreed, however, to place a temporary stay on that injunction, giving Justice Department attorneys time to secure a further stay from the circuit court that remains in effect until the appeal is decided. After hearing Monday's arguments from both sides, the panel of appellate judges will have an unlimited amount of time to hand down their decision.

Michael Froomkin, a professor specializing in Internet law at the University of Miami Law School, said the government's line of reasoning is likely to make the judges deferential to President Clinton, who authorized the regulations.

"Judges are very responsive to arguments that say, 'You're going to make us weaker. You're going to cause us casualties,'" said Froomkin. "It's not an automatic win for the government, but it's [a] powerful [argument], and you shouldn't underestimate that."

But Bernstein's prospects are brightened by the selection of the judges hearing the appeal. Froomkin characterized two of them--Betty Fletcher and Thomas Nelson--as moderate to liberal, suggesting they are likely to be responsive to arguments involving free speech and may be less deferential to the government. "They think things through for themselves," said Froomkin. "They're not knee-jerk people."

Judges Nelson and Fletcher, part of an appellate district that covers both Silicon Valley and the Seattle area, are also familiar with high-tech issues, which Bernstein's counsel thinks could work in Bernstein's favor.

"The Ninth Circuit is the most technically savvy, and it's been my assumption all along that the more the judges know about technology, the more they won't go for the government's 'scary Internet' argument," said Cindy Cohn, lead counsel for Bernstein. "But I'm ultimately more interested in a judge who understands First Amendment issues."

It's also worth noting that the U.S. Supreme Court reverses a higher percentage of Ninth Circuit rulings than those of any other appeals court. Last term, for instance, the high court reversed 27 of 28 Ninth Circuit decisions it reviewed. If the case makes it that far, Bernstein's lawyers feel confident in the Court's ability to adjudicate high-tech cases.

"We're lucky the Court had the Reno-CDA case to cut its teeth on as far as the Internet's concerned," said cocounsel Tien. "They showed they're not afraid of the Internet and new technology and seemed solidly behind the concept that communication on the Internet is as protected as communication in print."