US privacy advocates are hailing a decision by a US court of appeals that allows encryption code to be published on the Internet as a victory.
The case was brought against the US government by Professor Daniel Bernstein, who developed an encryption program called Snuffle, but found he was not allowed to share it with the scientific community because of US export regulations that classify encryption software as 'munition'.
He challenged whether such regulations were constitutional, and in 1996 won a victory when a US District Court found they violated freedom of speech.
The Ninth Circuit Court of Appeals in San Francisco confirmed the lower court's ruling on Thursday stating: "We find that the EAR [Export Administration Regulations] regulations (1) operate as a prepublication licensing scheme that burdens scientific expression, (2) vest boundless discretion in government officials, and (3) lack adequate procedural safeguards."
The court said that the regulations constituted a "prior restraint on speech that offends the First Amendment" of the US constitution.
The decision means that publishing the source code of an encryption program on the Internet is now a constitutional right and provides US developers of encryption software with another legal way of exporting their software.
As a result, online privacy advocates such as the Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC) were ecstatic about the decision.
John Gilmore, co-founder of the EFF, said: "The US government has wielded these export controls to deliberately eliminate privacy for ordinary people." "Misguided national security bureaucracies use these controls every day, to damage the nation they are sworn to protect, and to undermine the constitution they are sworn to uphold. Today's ruling is a giant step toward a sane policy," he added.
But US software companies had already found other ways to circumvent the export controls. For instance, Network Associates last year printed the source code to its PGP (Pretty Good Privacy) software on paper and exported it in the form of a book, which is a protected form of speech. Its Dutch subsidiary then scanned in the pages and recompiled the code.
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