October 15, 2003 6:36 PM PDT

Cold War encryption laws stand, but not as firmly

A pioneering attempt to overturn the U.S. government's Cold War-era laws restricting the publication of some forms of encryption code ended quietly Wednesday when a federal judge dismissed the lawsuit--but only after assurances that the anticrypto laws would not be enforced.

U.S. District Judge Marilyn Hall Patel in San Francisco threw out the case after the Bush administration said it would no longer try to enforce portions of the regulations, according to parties involved in the proceedings.

Daniel Bernstein, an iconoclastic math professor at the University of Illinois at Chicago, filed suit in 1995 after spending three years wrangling with the federal government over whether a simple encryption program could be freely distributed on the Internet. U.S. law at the time deemed online publication an "export" that could be punished with severe prison terms.

"I hope the government sticks to its promises and leaves me alone--but if they change their mind and start harassing Internet-security researchers, I'll be back," Bernstein said in an e-mail statement. Bernstein, author of the widely used qmail mail utility, did not respond to an interview request.

Bernstein's case, and two other similar attempts, have been credited with forcing the federal government to drastically scale back its attempts to regulate the kind of privacy-protecting encryption technology used in every Web browser and many e-mail readers. At one point such encryption was regulated by the State Department and treated as a "munition" like tanks and fighter jets, but the Clinton administration responded to the lawsuits by relaxing the rules and transferring responsibility to the Commerce Department.

At a hearing in October 2002, Justice Department attorney Tony Coppolino effectively placed even the latest rules on hold, saying the government would not use them to prosecute cryptographers engaged in legitimate research.

That admission from the Justice Department was enough for Patel to dismiss the case, saying that Bernstein could come back to court if there was a serious threat of the laws being enforced.

Bernstein's lawyers, with attorneys from the Electronic Frontier Foundation among them, complained that the encryption regulations had been repeatedly changed to derail Bernstein's case, which claimed the rules violated the First Amendment's guarantee of free expression. In a separate case, the 6th Circuit Court of Appeals had said: "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment."

A January 2000 letter from Bernstein's lawyers to the government said that the rules unconstitutionally required researchers to divulge their work to the government. "The requirement that Professor Bernstein and others simultaneously notify both (the Commerce Department) and (the National Security Agency) at the time of electronic publication of source code, when no such notification is required for publication or communication of such code on paper, is another Constitutional problem," the letter said, citing regulations that will no longer be enforced.

 

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