Ch. 08: Encryption

A. Case Law

Notes

1. Both Junger and Bernstein show courts grappling with the question of whether computer code constitutes a type of speech or a type of machine. That inquiry should sound familiar; see Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000), discussed at Ch.07.B.4.

2. We read the Bernstein opinion largely for historical reasons. As noted above, the Ninth Circuit withdrew that opinion and ordered a rehearing en banc. But that rehearing never came. Before it could, the defendants announced plans to change the regulations under judicial review. In January 2000, defendants added 15 C.F.R. section 740.13(e) to the Federal Register, allowing the Department of commerce to exempt "publicly available" encryption source code from federal licensing requirements. Plaintiff amended his complaint in January 2002, alleging that the changed regulations still violated his First Amendment Rights. Defendants brought and won a motion for summary judgment on the amended complaint on grounds that the plaintiff lacked the requisite standing. See Bernstein v. Dept. of Commerce, 2004 U.S. Dist. LEXIS 6672, *5 n. 2 (N.D. Cal. April 19, 2004). Other non-party plaintiffs later brought a motion to intervene, and thereby revive the lawsuit. They lost because they missed the filing deadline by 31 days. Id. at *7.

3. Even if ultimately upheld as constitutional, encryption export regulations will prove difficult to enforce. Nonetheless, they remain politically popular. How do you explain that?
   
   
   

Useful Resources and Optional Reading

• Karn v. United States Dep't of State, 925 F. Supp. 1 (D.D.C. 1996) (granting defendants summary judgment on plaintiff's First and Fifth Amendment claims against encryption export regulations)
  • Judgment Remanding Case for Further Review, 107 F.3d 923 (1997) (unpublished)
  • Order to Hold Evidentiary Hearing, Civ. A. No. 95-1812-LFO (Feb. 18, 1999)
  
  
• Commercial Encryption Export Controls, Bureau of Industry and Security, U.S. Dept. of Commerce

• EPIC, Cryptography & Liberty 2000 (2000) (offering global survey of encryption regulations)
  
  

Bell's Class 23: Please read the materials in Ch.08.

B. Commentary