On May 6, 1999, a panel of three judges from the U.S. Court of Appeals for the Ninth Circuit issued a decision in Bernstein vs. U.S. Department of Justice. The Ninth Circuit found that the Export Administration Regulations (“EAR”, 15 CFR Part 730 et seq.) “(1) operate as a prepublication licensing scheme that burdens scientific expression, (2) vest boundless discretion in government officials, and (3) lack adequate procedural safeguards”. It held that the EAR “constitutes a prior restraint on speech that offends the First Amendment”, and affirmed the judgement of the district court that Bernstein should be permitted to publish the source code of his encryption software program in electronic form without a license. The full text of the Ninth Circuit’s opinion can be found at http://www.vcilp.org/Fed-Ct/Circuit/9th/opinions/9716686.htm.
The Ninth Circuit’s decision has received a lot of attention in the press and on the Internet. However, it is not a final decision in the Bernstein case. The provisions of the EAR governing export of encryption source code remain in effect. The Bureau of Export Administration has warned “[e]xporters should be aware that the decision does not affect the applicability of the EAR to exports and reeexports of encryption hardware and software products or encryption technology. This includes controls on the export of encryption software in source code.” http://www.bxa.doc.gov/factsheets/EncryptCase.html The Department of Justice has not given up, saying “[w]e are considering possible avenues for further review, including seeking a rehearing of the appeal en banc in the Ninth Circuit”. http://www.usdoj.gov/opa/pr/1999/May/178civ.htm We are perhaps in the middle of the second period of a hockey game that is likely to extend to a final period, to be played in the Supreme Court, several years hence.
When he was a doctoral candidate at the University of California, Berkeley, Bernstein developed source code for an encryption software program called “Snuffle”. The State Department’s Office of Defense Trade Controls informed Bernstein that he needed a license to export Snuffle source code in electronic form under the International Traffic in Arms Regulations (“ITAR”, 22 CFR Part 120 et seq.).
Bernstein challenged the export controls on Snuffle source code, alleging that it was speech protected by the First Amendment. The district court found that the Snuffle source code was speech protected by the First Amendment and held the challenged ITAR provisions were facially invalid as a prior restraint on speech.
When the State Department transferred jurisdiction with respect to encryption products and technologies from the ITAR to the EAR, Bernstein amended his complaint to include the Commerce Department’s Bureau of Export Administration. Once again, the district court ruled in Bernstein’s favor, finding that that relevant provisions of the EAR were facially invalid as a prior restraint on speech.
The Department of Justice filed an appeal of the district court’s ruling with the Court of Appeals for the Ninth Circuit. Three judges heard oral arguments in December of 1997, and issued a two to one decision in favor of Bernstein on May 6, 1999.
Ninth Circuit’s Decision Dissected
The threshold issue for the Ninth Circuit was whether Bernstein was entitled to bring a facial challenge against the EAR. In order to prevail, Bernstein had to convince the court that (1) governmental authorities had unfettered discretion to suppress speech, and (2) source code is, in fact, speech.
On the first question, the Ninth Circuit observed that BXA can deny licenses whenever it decides that an export is inconsistent with “U.S. national security and foreign policy interests”. It concluded “[o]bviously, this constraint on official discretion is no constraint at all”.
The Ninth Circuit observed that the second question, whether encryption source code is speech for First Amendment purposes, is more difficult. Ultimately, however, it concluded that “cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs” and held that encryption source code is speech entitled to First Amendment protection.
Having ruled that Bernstein was entitled to bring a facial challenge against the EAR, the Ninth Circuit next addressed the issue of whether the EAR constituted an impermissible prior restraint on speech. To prevail, the Justice Department had to prove three points. First, that any restraint was for a brief period of time. Second, that there was expeditious judicial review. Third, that the censor (BXA) must bear the burden of going to court to suppress the speech in question and must bear the burden of proof.
On the first question, the Ninth Circuit noted that there are no time limits within which an export license application must be processed, once it has been referred to the President, and that no time limit governs the internal appeals process. Accordingly, the EAR cannot satisfy the requirement that a licensing decision be made within a brief period of time. On the second and third questions, the Ninth Circuit noted that the EAR “further offends” because it denies judicial review, and does not require BXA to go to court and bear the burden of proof in its case.
Although the language in the Ninth Circuit’s opinion may appear at first to be broad, it is worth noting that the Ninth Circuit itself cautioned against too broad an interpretation.
We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based restrictions…. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech.
Finally, although it is dicta and therefore not an integral part of the Ninth Circuit’s ruling, civil libertarians may take solace in the court’s comments, below:
[T]he government’s efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with each other. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately…. Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb…. Government efforts to control encryption thus may well implicate not only the First Amendment … but also the constitutional rights of each of us as potential recipients of encryption’s bounty. Viewed from this perspective, the government’s efforts to retard progress in cryptography may implicate the Fourth Amendment, as well as the right to speak anonymously … the right against compelled speech … and the right to informational privacy…. While we leave for another day the resolution of these difficult issues, it is important to point out that Bernstein’s is a suit not merely concerning a small group of scientists laboring in an esoteric field, but also touches on the public interest broadly defined.
One of the three judges dissented from the decision of the majority. His dissent was based on his finding that source code is not speech at all, but rather a method of controlling computers.
The Next Steps
The Ninth Circuit’s decision will not take effect until the court issues its mandate. The Justice Department may request that the Ninth Circuit hold a re-hearing, en banc (i.e., before a group of eleven judges, rather than the current three). As one of the judges noted in his concurring opinion, “the importance of this case suggests that it may be appropriate for review by the United States Supreme Court”.