Hickman vs. federal election commission and internal revenue servise

Federal Court Denies Government's Motion to Dismiss Bernstein Case, Acknowledges Source Code as Speech


April 17, 1996
Electronic Frontier Foundation Contacts:
Shari Steele, Staff Counsel
301/375-8856, ssteele@eff.org
Lori Fena, Executive Director
415/436-9333, lori@eff.org
Denying the government's motion for dismissal in mathematician Daniel
Bernstein's suit against the State Department, Judge Marilyn Hall Patel
in the Northern District of California ruled Monday that source code in
Bernstein's cryptographic algorithm, "Snuffle," is speech that is
protected from prior restraint by the First Amendment.
This is the first time a U.S. court has ruled that source code is speech
under First Amendment analysis. Previously, courts have held that
software is speech for copyright law only.
The decision states in part:
"This court can find no meaningful difference between computer language,
particularly high-level languages as defined above, and German or
French....Like music and mathematical equations, computer language is
just that, language, and it communicates information either to a computer
or to those who can read it....Thus, even if Snuffle source code, which
is easily compiled into object code for the computer to read and easily
used for encryption, is essentially functional, that does not remove it
from the realm of speech....For the purposes of First Amendment analysis,
this court finds that source code is speech."
(The full text of the decision can be found at
Judge Patel's acknowledgment that source code enjoys Constitutional
protection has implications that reach far beyond cases involving the
export of cryptography. The decision holds importance to the future of
secure electronic commerce and lays the groundwork needed to expand First
Amendment protection to electronic communication.
Because of its far-reaching implications, the Bernstein case is being
watched closely not only by privacy advocates, but by the entire computer
industry, the export and cryptography communities and First Amendment
The decision allows Bernstein to continue with his lawsuit that the
International Traffic in Arms Regulation (ITAR) acts as a prior restraint
on speech and that the ITAR is overbroad and vague.
EFF is very pleased with Judge Patel's ruling and believes that it bodes
well for Bernstein's ultimate success in trial, which is now scheduled to
proceed with the normal pre-trial and trial sequence of events.
The court drew an important distinction between the Bernstein case and
other cases involving export controls on cryptography. The government has
cited several cases involving the Export Administration Act as reasons
why the Bernstein case should be dismissed. Judge Patel recognized that
the Constitutional questions being raised by Bernstein differ
significantly from the policy questions raised in the cases introduced by
the government.
Judge Patel also ruled that Bernstein could bring his case even though
the Arms Export Control Act specifically precludes judicial review,
because what Bernstein is asking the court to review (i.e., the
constitutionality of the statute and its regulations) was not what had
been precluded (i.e., the government's determination in a particular
instance whether or not something was exportable). "With respect to
constitutional questions, the judicial branch not only possesses the
requisite expertise to adjudicate these issues, it is also the best and
final interpreter of them."
As part of her decision, Judge Patel determined that only the source code
was at issue in the case, not Bernstein's academic paper describing the
source code. Bernstein tried to get the government to rule separately on
the paper and the code back in 1993 by filing separate commodity
jurisdiction requests. The State Department merged the requests and
rejected them all. On June 29, 1995, after Bernstein and EFF filed suit,
the government sent Bernstein a letter saying that the paper could be
published and never had been forbidden. While Judge Patel claimed that
the issue of the paper now appeared to be moot, she commented, "It is
disquieting than an item defendants now contend could not be subject to
regulation was apparently categorized as a defense article and subject to
licensing for nearly two years, and was only reclassified after plaintiff
initiated this action."

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