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Thursday, January 13, 2000
         Civil Liberties Groups Say New Encryption Export
    Regulations Still Have Serious Constitutional Deficiencies
Washington, DC -- Leading Internet civil liberties groups said today
that new encryption export regulations released by the U.S. Commerce
Department fall short of the Clinton Administration's promise to
deregulate the privacy-enhancing technology.  The American Civil
Liberties Union (ACLU), Electronic Frontier Foundation (EFF) and
Electronic Privacy Information Center (EPIC) will continue to press
their Constitutional cases.  These court cases seek to eliminate U.S.
government regulations that make Internet encryption software and
technology more cumbersome to publish or send than the same items when
published in other media.
While the Administration has taken a step in the right direction with
its latest revisions, the fundamental constitutional defects of the
encryption export regime have not been remedied.  Specifically:
- The new regulations, like the old ones, impose special requirements on
Internet speech, contrary to the Supreme Court's 1997 ruling in Reno v.
ACLU.  The regulations require that the government be notified of any
electronic "export" of publicly available encryption source code, and
prohibit electronic "export" to certain countries.  Yet people may
freely send the same information anywhere on paper.
- The export regulations are still a completely discretionary licensing
scheme.  They continue to require licenses for a large amount of
communication protected by the First Amendment, including transmitting
source code that is not "publicly available," source code that is
"restricted," source code forming an "open cryptographic interface," and
various forms of object code.
- While the new regulations appear to permit free posting of encryption
source code to Internet discussion lists, such posting may be illegal if
the poster has 'reason to know' that it will be read by a person in one
of the seven regulated countries (such as Cuba).
- The new regulations still ban providing information on how to create
or use some encryption technology as prohibited "technical assistance."
Software publishers can be fined or imprisoned for helping people to use
their code.  These same limitations do not apply to non-encryption
source code.
The U.S. export control laws on encryption have been the source of much
legal wrangling for the past several years.  Encryption is a method for
scrambling data in order to make electronic communications more secure.
As more computer users employ encryption to protect the privacy of their
e-messages and documents, the U.S. government has until now demanded
guaranteed easy access to the content of Internet communications.
In a well-publicized court case, mathematician Daniel J. Bernstein has
challenged the export control laws on encryption on First Amendment
grounds. Professor Bernstein claims that his right to publish his own
encryption software and share his research results with others over the
Internet is being unconstitutionally restricted by the government's
controls.  Bernstein won his case at the trial level, and won an appeal
in the Ninth Circuit Court of Appeals.  The government asked that the
appeal be reconsidered in light of the new regulations, and a larger "en
banc" panel of Ninth Circuit judges will reconsider the case this
A similar case challenging the constitutionality of the export rules was
brought by the ACLU of Ohio on behalf of Ohio law professor Peter
Junger, who wished to publish an electronic version of an encryption
program he wrote.  The case is pending in the Sixth Circuit Federal
Court of Appeals.
Barry Steinhardt, Associate Director for the ACLU, said, "The rules are
a step forward, but they are still too complex and leave too many
questions unanswered.  Now that the Administration has tacitly admitted
that it can't and shouldn't control the use of encryption, it should
have announced a simple deregulation, rather than regulatory maze."
"These First Amendment problems need to be fixed before we can support
the government here," commented EFF attorney Shari Steele. "The
government has made some concessions, but they are not enough to make
the regulations constitutional.  EFF will continue to support Professor
Bernstein as he presses on with his litigation."
According to EPIC General Counsel David Sobel, "The revised rules will
make it easier for commercial firms to export and sell encryption
products.  While that is a positive development, the government will
still retain significant control over this technology, to the detriment
of efforts to create a truly secure Internet.  It's time to remove the
bureaucratic requirements and permit the free exchange of encryption"
The American Civil Liberties Union (http://www.aclu.org) is the nation's
largest and oldest civil liberties organization. In its defense of the
principles of the Bill of Rights, it advocates for both free speech and
privacy rights.
The Electronic Frontier Foundation (http://www.eff.org) is a leading
global nonprofit organization linking technical architectures with legal
frameworks to support the rights of individuals in an open society.
Founded in 1990, EFF actively encourages and challenges industry and
government to support free expression, privacy, and openness in the
information society. EFF maintains one of the most-linked-to Web sites
in the world.
The Electronic Privacy Information Center (http://www.epic.org) is a
non-profit research and advocacy organization based in Washington, DC.
It was established in 1994 to focus public attention on emerging civil
liberties issues and to protect privacy, the First Amendment, and
constitutional values in emerging communications media.
A copy of the latest encryption regulations can be found at:
For more information about the Bernstein case, check out
Press Contacts:
David Sobel, General Counsel, EPIC
sobel@epic.org        +1 202 544 9240
Barry Steinhardt, Associate Director, ACLU
barrys@aclu.org       +1 212 549 2508
Cindy Cohn, Prof. Bernstein's attorney
cindy@mcglashan.com   +1 650 341 2585
Shari Steele, Dir. of Legal Services, EFF
ssteele@eff.org       +1 301 283 2773