Case Summary and Outcome

The U.S. Court of Appeals for the Ninth Circuit determined that regulatory restrictions on an individual’s ability to publish encryption source code was a violation of the First Amendment. Daniel Bernstein developed encryption software and wanted to publish an explanatory research paper and its source code. However, the Export Administration Regulations (EAR) prevented him from freely publishing the source code, which led Bernstein to argue that the regulation infringed on his First Amendment rights. The court reasoned that programming language is speech and is thus protected under the First Amendment. However, the court stressed that not all software is expression.

Facts

Bernstein developed a cryptography software that he called “Snuffle” when he was a doctoral student. He wanted to publish the source code and a research paper on it for peer review purposes. Cryptography, as related to encryption, has been a concern of the U.S. government and they have passed laws regulating information on it. Bernstein knew of this and inquired with the State Department on whether he needed a license to publish his work.

The State Department responded that Bernstein’s software was a munition under the International Traffic in Arms Regulations. Thus, Bernstein had to register as an arms dealer and apply for a license to publish or “export” his software’s source code and accompanying research paper.

Bernstein appealed on constitutional grounds, arguing that the regulations infringed on his First Amendment rights.

Decision Overview

The issues posed to the court was whether the EAR restrictions on Bernstein’s ability to publish the source code was a violation of the First Amendment.

To decide that, the court considered whether Bernstein was entitled to bring a “facial challenge” – an allegation that the EAR legislation was unconstitutional for all and not just Bernstein. A facial challenge requires that the law in question gives unfettered power to the government to discriminate and that law “exhibits a close enough nexus to expression.”

The court found that the EAR regulation gave the government substantial power to discriminate since it gave its administrators power to deny licenses for inconsistencies with U.S. national security and foreign policy interests – an incredibly broad guidance. The court also stressed that whether the administrators actually discriminated was a non-issue, rather, what mattered was that the EAR allowed for this type of discernment.

On the existence of the closeness to expression, the court found that cryptographers, like Bernstein, use the source code to communicate scientific ideas, which is considered expression for the First Amendment purposes, and is thus protected. The government argued that the source code is unique expression because it is related to functionality. The court dismissed that argument, stating that “[t]he fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its ‘functional’ aspects.” [1]

The court then analyzed the merits of EAR’s licensing restraints using a three part test: (1) restraint had to be for a specified brief period of time; (2) there had to be expeditious judicial reviews; and (3) the censor had to bear the burden of proof. The court found that the EAR regulation violated part 1 of the test as it had the potential of lasting indefinitely.

Based on this analysis, the court ruled that Bernstein’s source code was expression protected under the First Amendment and that it was violated by the EAR regulation. However, the court stressed that not all software is expression.

After this decision was made the subsequent appellate history demonstrates that a re-hearing was granted by the en banc court and the opinion withdrawn on September 30, 1999 (see Bernstein v. U.S. Dept. of Justice, 192 F.3d 1308, 9th Cir., Sep. 30, 1999). 

[1] Para. 8 of the decision, https://epic.org/crypto/export_controls/bernstein_decision_9_cir.html.