As expected, the US Ninth Circuit Court of Appeals has ruled that US export limits on encryption contravene the First Amendment. The story began in 1995, when a math professor at the University of Illinois at Chicago, Daniel Bernstein, sued the government for withholding an export license for his encryption software. Since World War II, encryption has been deemed an armament for export purposes; but in 1997, US District Judge Marilyn Hall Patel found that software is language and can be protected free speech. Therefore the government’s constraint on Bernstein’s software violates his right to free speech.
The government appealed Patel’s ruling, but today’s decision strikes down that appeal. Circuit Judge Betty Fletcher said: We conclude that the challenged regulations allow the government to restrain speech indefinitely with no clear criteria for review. As a result, Bernstein and other scientists have been chilled from engaging in valuable scientific expression. The Department of Commerce is likely to appeal the decision to the full Ninth Circuit or the Supreme Court.
