FOR IMMEDIATE RELEASE
Thursday, January 13, 2000

Civil Liberties Groups Say New Encryption Export Regulations Still Have Serious
Constitutional Deficiencies

Washington, DC -- Leading Internet civil liberties groups said today that new
encryption export regulations released by the U.S. Commerce Department fall
short of the Clinton Administration's promise to deregulate the
privacy-enhancing technology. The American Civil Liberties Union (ACLU),
Electronic Frontier Foundation (EFF) and Electronic Privacy Information Center
(EPIC) will continue to press their Constitutional cases. These court cases
seek to eliminate U.S. government regulations that make Internet encryption
software and technology more cumbersome to publish or send than the same items
when published in other media.

While the Administration has taken a step in the right direction with its
latest revisions, the fundamental constitutional defects of the encryption
export regime have not been remedied. Specifically:
   
   
  * The new regulations, like the old ones, impose special requirements on
    Internet speech, contrary to the Supreme Court's 1997 ruling in Reno v.
    ACLU. The regulations require that the government be notified of any
    electronic "export" of publicly available encryption source code, and
    prohibit electronic "export" to certain countries. Yet people may freely
    send the same information anywhere on paper.
  * The export regulations are still a completely discretionary licensing
    scheme. They continue to require licenses for a large amount of
    communication protected by the First Amendment, including transmitting
    source code that is not "publicly available," source code that is
    "restricted," source code forming an "open cryptographic interface," and
    various forms of object code.
  * While the new regulations appear to permit free posting of encryption
    source code to Internet discussion lists, such posting may be illegal if
    the poster has 'reason to know' that it will be read by a person in one of
    the seven regulated countries (such as Cuba).
  * The new regulations still ban providing information on how to create or use
    some encryption technology as prohibited "technical assistance." Software
    publishers can be fined or imprisoned for helping people to use their code.
    These same limitations do not apply to non-encryption source code.

The U.S. export control laws on encryption have been the source of much legal
wrangling for the past several years. Encryption is a method for scrambling
data in order to make electronic communications more secure.

As more computer users employ encryption to protect the privacy of their
e-messages and documents, the U.S. government has until now demanded guaranteed
easy access to the content of Internet communications.

In a well-publicized court case sponsored by EFF, mathematician Daniel J.
Bernstein has challenged the export control laws on encryption on First
Amendment grounds. Professor Bernstein claims that his right to publish his own
encryption software and share his research results with others over the
Internet is being unconstitutionally restricted by the government's controls.
Bernstein won his case at the trial level, and won an appeal in the Ninth
Circuit Court of Appeals. The government asked that the appeal be reconsidered
in light of the new regulations, and a larger "en banc" panel of Ninth Circuit
judges will reconsider the case this spring.

A similar case challenging the Constitutionality of the export rules was
brought by the ACLU of Ohio on behalf of Ohio law professor Peter Junger, who
wished to publish an electronic version of an encryption program he wrote. The
case is pending in the Sixth Circuit Federal Court of Appeals.

Barry Steinhardt, Associate Director for the ACLU, said, "The rules are a step
forward, but they are still too complex and leave too many questions
unanswered. Now that the Administration has tacitly admitted that it can't and
shouldn't control the use of encryption, it should have announced a simple
deregulation, rather than regulatory maze."

"These First Amendment problems need to be fixed before we can support the
government here," commented EFF attorney Shari Steele. "The government has made
some concessions, but they are not enough to make the regulations
constitutional. EFF will continue to support Professor Bernstein as he presses
on with his litigation."

According to EPIC General Counsel David Sobel, "The revised rules will make it
easier for commercial firms to export and sell encryption products. While that
is a positive development, the government will still retain significant control
over this technology, to the detriment of efforts to create a truly secure
Internet. It's time to remove the bureaucratic requirements and permit the free
exchange of encryption"

The American Civil Liberties Union (http://www.aclu.org) is the nation's
largest and oldest civil liberties organization. In its defense of the
principles of the Bill of Rights, it advocates for both free speech and privacy
rights.

The Electronic Frontier Foundation (http://www.eff.org) is a leading global
nonprofit organization linking technical architectures with legal frameworks to
support the rights of individuals in an open society. Founded in 1990, EFF
actively encourages and challenges industry and government to support free
expression, privacy, and openness in the information society. EFF maintains one
of the most-linked-to Web sites in the world.

The Electronic Privacy Information Center (http://www.epic.org) is a non-profit
research and advocacy organization based in Washington, DC. It was established
in 1994 to focus public attention on emerging civil liberties issues and to
protect privacy, the First Amendment, and constitutional values in emerging
communications media.

A copy of the latest encryption regulations can be found at:
   
    http://www.epic.org/crypto/export_controls/regs_1_00.html

For more information about the Bernstein case, check out
   
    http://www.eff.org/bernstein/