Bernstein vs. the U.S. Department of State

Bernstein v. the U.S. Department of State is a landmark legal case in the short history of digital technology that set two important precedents. First, it ruled that the U.S. government's export policies that barred the export of encryption software were unconstitutionally restrictive; second, it declared that software source code can be a form of protected free speech.

In the lawsuit, a federal court was asked to rule in a dispute between the U.S. government and University of Illinois–Chicago mathematics professor Daniel Bernstein, to determine if he had the right to distribute encryption software of his own creation over the Internet. The federal government claimed that federal Export Administration Regulations (EAR), which are intended to keep encryption technology out of the hands of rogue states, proscribed Bernstein from freely distributing the code, even if it was his own invention.

Bernstein had devised his encryption program, called Snuffle, in 1990 while he was a graduate student at the University of California–Berkeley. His software converts a one-way “hash function” into private-key encryption system, one that can be decoded only by whoever holds the private “key,” or pass code. The functionality of the software depends on two people having exchanged their private keys.

Court documents contended that Bernstein later used Snuffle in his teaching, to convey his ideas about encryption for a course on cryptography. Even the dissenting judge in the Ninth Circuit Appeals Court ruling acknowledged that to teach the course, Bernstein had to actually use his source code “textually.” The professor made the software source code available free on the Web site where he placed course-review materials for his classes.

Wanting to disburse the material further to the academic and scientific communities, in the mid-1990s Bernstein asked the U.S. State Department if he would need a license to publish Snuffle. He was told that his creation was tantamount to “munitions” under International Traffic in Arms Regulations (ITAR). Therefore, the government contended, Bernstein would have to obtain export licenses from the State Department for each person outside the United States who wanted to view Snuffle's online source code.

In February 1995, Bernstein sued the government, claiming that the arms regulations were unconstitutional and that his First Amendment rights should permit him the freedom to distribute the material as he wished.

Ninth Circuit District Court Judge Marilyn Hall Patel ruled in the instructor's favor in 1997, citing First Amendment grounds to declare that free-speech rights protected the software's source code. Later, after President Clinton shifted oversight and licensing authority over non-military encryption products to the Commerce Department, Bernstein amended his suit to include the Commerce Department. In August 1997, Patel issued another ruling, identical to her first, reasserting First Amendment protections of encryption source code regardless of which federal agency was in charge of the government's encryption policy.

The U.S. government appealed those decisions, and in May 1999, a three-judge Ninth Circuit Court of Appeals panel voted 2-1, agreeing with Patel. The judges asserted that the government's export rules operated as a kind of pre-publication licensing scheme that obstructed the professor's rights to scientific expression. It also ruled that the Export Administration Regulations gave government officials “boundless discretion” over encryption matters, and that the regulations lacked adequate checks and balances. The panel, with one dissenter, noted that Bernstein's Snuffle software was, in part, a “form of political expression.”

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