Electronic Frontier Foundation Media Release

Latest Governmental Encryption Scheme Still Unconstitutional

EFF-Sponsored Legal Challenge Will Proceed

For Immediate Release: Thursday, September 16, 1999

The Administration\'s announcement makes no substantial change in the most important issues at stake in the encryption debate. The scheme continues today\'s unconstitutional restrictions for encryption publishers. Such restrictions violate the First Amendment, as two Federal courts have agreed, and the Electronic Frontier Foundation (EFF) will continue with its legal challenge.

EFF President Tara Lemmey said, "Researchers and software vendors are still unable to publish their software on the Internet. Limited access software distribution sites are still required under the new rules. Until people working on the forefront of encryption are able to fully and openly communicate via the Internet, claims that we have won the war are premature."

Encryption, the process of coding and decoding computerized information, is the most critical technology for protecting privacy and securing our infrastructure. The announcement simplifies the rules for large companies exporting certain retail encryption products, but it carefully gerrymanders out issues of Internet publishing, source code, technical assistance, free software such as Linux, and other technologies or products that threaten the National Security Agency\'s ability to massively wiretap citizens and foreigners.

"The new scheme hides the controls under the phrase \'one-time technical review,\' but the key is that Americans are not free to publish encryption without government permission," said EFF co-founder John Gilmore. "The criteria for what can be exported are still under the secret control of NSA. There are no time limits on their review and no guarantee of approval. Each review is expected to take months. This simply continues the classic prior restraint of publication, which has already lost the government two court cases."

Since 1995, EFF has been winning a major legal challenge against the government\'s export controls, in the case Daniel J. Bernstein v. US Department of Justice. The new regulatory framework does not correct, nor even address, the Constitutional infirmities already identified by two Federal courts.

"For Professor Bernstein, today\'s announcement of a one-time technical review as a precondition to publication is still a prior restraint and therefore unconstitutional under the rulings in the EFF case," said Bernstein\'s lawyer Lee Tien. "Nothing here acknowledges nor addresses Bernstein\'s right to publish his source code. The government\'s position only views encryption software as a \'product.\'"

The Ninth Circuit Court of Appeals ruled on May 6, 1999 that the federal government\'s restrictions on encryption are unconstitutional, affirming a lower court\'s ruling that export control over encryption "software and related devices and technology are in violation of the First Amendment on the grounds of prior restraint."

In that decision, Judge Betty Fletcher stated, "The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption\'s bounty." The Administration\'s announcement, which completely ignored the ruling and its implications, is merely an attempt to distract us from the real reform that Federal judges are demanding.

As part of today\'s announcement, the Administration also provided Congress with a new bill, called the Cyberspace Electronic Security Act (CESA). Gilmore said, "This Act would deny people charged with a crime the ability to see and challenge the chain of evidence against them -- if the supposed evidence came from back doors or security holes in encryption products -- and would protect companies from lawsuits if they insert those back doors for the government."

"Companies have enough trouble engineering true security and privacy into their products. Let\'s not add government incentives to secretly subvert their customers\' privacy," he said.

The government\'s announcement and related documents are available on the EFF Web site at http://www.eff.org. Details on the Bernstein case, including information on the lower court\'s rulings, is available at http://www.eff.org/bernstein.

About EFF:

The Electronic Frontier Foundation (http://www.eff.org) is the leading global organization linking technical architectures and 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 access in the information society. The Electronic Frontier Foundation Web site has won several awards, including being ranked by WebCrawler as the fourth-most-linked-to site in the world.