Encryption
Court Cases
| Members | Description | Judgement |
| Bernstein v. Department of State, 1995 | In Februrary 1995, a graduate student at Berkeley named Daniel Bernstein filed suit after the State Department said he would be required to register as a munitions dealer to post on the Internet a short encryption program he had written. Current export rules allow source code to be communicated in written or printed form, but not electronic, including HTML text. Bernstein's case was that source code falls under free speech, and thus that encryption export controls are a violation of the First Amendment. | The U.S. District Court of San Francisco ruled in favor of Bernstein in December, 1996. The government appealed, and the suit was amended to address the Commerce Department after Clinton's Executive Order. The decision was reaffirmed in Bernstein's favor in August 1997. The decision was very narrow, however, and only prevented the government from restricting Bernstein individually. The judge, Marilyn Patel, stated, "The legal questions at issue are novel, complex and of public importance," to justify why her decision was not broadly based.
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| Karn v. Department of State, 1995 | In February 1994 the State Department approved a "Commodity Jurisdiction Request" (CJR) on a cryptography book that Philip Karn owned, permitting it to be exported since it is in the public domain. In March 1994 his CJR for a floppy disk containing verbatim encryption algorithms from the cryptography book was denied. Because the disk classified as cryptographic software, it fell under the Munitions List. | Karn filed suit in 1995, and in 1996 Judge Charles Richey ruled in favor of the defendant, stating in his decision that the diskette constituted an inherently different form than the book and fell under the Munitions List of "software". Karn appealed, and the D.C. Circuit Court of Appeals sent the case back down to the district level after Clinton's Executive Order shifted responsibility to the Commerce Department. Judge Richey died in the interim, and Judge Oberdorfer granted a request for an evidentiary hearing this February.
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| Junger v. Daley, 1997 | Only a week after the final Bernstein decision, Professor Paul Junger amended his Junger v. Christopher suit to name the Secretary of Commerce Daley as the primary defendant. Junger wished to publish a number of encryption program on the World Wide Web as a part of his class on computing and the law. He claimed that the encryption regulation violates not only freedom of speech, but freedom of the press. His complaint described the Web, as well as CD-ROM and FTP availability as a form of publishing. | The summary judgement of the District Court of the Northern District of Ohio was for the government. Judge Gwin stated in his opinion [link], "Source code is 'purely functional,' in a way that· instructions, manuals, and recipes are not·. Source code is a device."
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