US bid to keep program off the net fails

June 4, 1999

An American court has ruled that the government cannot block the export of a sophisticated encryption program, in a decision with broad ramifications for the free international exchange of computer programming language.

The Ninth Circuit Court of Appeals in San Francisco said it was unconstitutional for the government to stop Daniel Bernstein, an assistant professor at the University of Illinois, from posting the source code to his Snuffle encryption program on the internet.

But the four-year legal battle is expected to continue, since the government immediately got a stay of the decision and was likely to appeal it to the US Supreme Court. Encryption technology is widely available from other sources, and even Snuffle can be legally exported, as long as the two-page encryption algorithm is printed on paper, rather than posted on the internet or copied electronically - purportedly to prevent terrorists from using it.

"It's hard to imagine that our country's national security is based on a belief that terrorists can't type," Dr Bernstein's attorney, Cindy Cohn, said.

The broader impact of the court decision, if upheld, Ms Cohn said, is on governments' attempts to control the international exchange of ideas over the internet.

"The US government and lots of governments would like to have some regulation over the internet, and so much of what occurs over the internet is in programming language," she said.

The appeals court agreed 3-2 that source code was a type of language, and that language is protected under the First Amendment guaranteeing free expression.

For the majority, Judge Betty Fletcher noted that source code was meant to be read and understood by humans, making it a form of speech that could not be subject to "the boundless discretion" of the government. Dissenting judge Thomas Nelson argued that only a few people could understand source code, which meant it was a product, not a language.

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