By Rachel Chalmers
A US Federal Court of Appeals has agreed to reconsider its decision to deny the Clinton administration the power to prevent companies and individuals from exporting encryption software or publishing it on the internet. In May 1999, a panel of three judges from the Ninth Circuit Court of Appeals was asked whether University of Illinois professor Daniel Bernstein was within his rights to publish his encryption application – Snuffle – online. The judges ruled 2-1 that source code is protected speech, and that to prevent Bernstein from publishing Snuffle, as the federal government had done, was a violation of the professor’s First Amendment rights. In June 1999, the US Department of Justice asked the full court of eleven judges to reconsider the matter. A majority of the active judges have voted to refer the case to an eleven-judge panel for a new hearing at an unspecified date.
The impact of this news is greatly diminished by the fact that on September 16, 1999, the US Government announced significant decontrol of exports of cryptographic technology. Encryption had been classified as a munition since playing a decisive role in ending World War Two, and the FBI and National Security Agency (NSA) had fought to maintain control of strong encryption in order to protect information they gleaned through routine surveillance of international electronic communications – a fifty-year project known as Echelon. Unfortunately for the spooks, US technology vendors lost overseas markets as a result of the ban, and lobbied hard for it to be lifted. The eased export restrictions have cost the administration at least $500m, which is earmarked for the FBI and NSA to develop alternative methods of collecting evidence. The ironic result is that while multi-national corporations have gained unprecedented access to strong encryption technologies, Bernstein’s right to free speech may yet be overturned. รก
