DANIEL J. BERNSTEIN, Plaintiff-Appellee
v. UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants-Appellants
Appeal from the United States District Court for the Northern District of California to the
United States Court of Appeals for the
Ninth Circuit
Filed May 6, 1999
Before: Myron H. Bright,* Betty B. Fletcher, and Thomas G. Nelson, Circuit Judges.
Opinion by Judge B. Fletcher; Concurrence by Judge Bright; Dissent by Judge T.G. Nelson
OPINION
B. Fletcher, Circuit Judge:
The government defendants appeal the grant of summary judgment to the plaintiff, Professor Daniel J. Bernstein
("Bernstein"), enjoining the enforcement of certain Export Administration Regulations ("EAR") that limit Bernstein's
ability to distribute encryption software. We find that the EAR 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. Consequently, we hold that the challenged regulations constitute a prior restraint
on speech that offends the First Amendment. Although we employ a somewhat narrower rationale than did the
district court, its judgment is accordingly affirmed.
BACKGROUND
A. Facts and Procedural History
Bernstein is currently a professor in the Department of Mathematics, Statistics, and Computer Science at the
University of Illinois at Chicago. As a doctoral candidate at the University of California, Berkeley, he developed
an encryption method -- "a zero-delay private-key stream encryptor based upon a one-way hash function" -- that
he dubbed "Snuffle." Bernstein described his method in two ways: in a paper containing analysis and
mathematical equations (the "Paper") and in two computer programs written in "C," a high-level computer
programming language ("Source Code"). Bernstein later wrote a set of instructions in English (the "Instructions")
explaining how to program a computer to encrypt and decrypt data utilizing a one-way hash function, essentially
translating verbatim his Source Code into prose form.
Seeking to present his work on Snuffle within the academic and scientific communities, Bernstein asked the State
Department whether he needed a license to publish Snuffle in any of its various forms. The State Department
responded that Snuffle was a munition under the International Traffic in Arms Regulations ("ITAR"), and that
Bernstein would need a license to "export" the Paper, the Source Code, or the Instructions. There followed a
protracted and unproductive series of letter communications between Bernstein and the government, wherein
Bernstein unsuccessfully attempted to determine the scope and application of the export regulations to Snuffle.
Bernstein ultimately filed this action, challenging the constitutionality of the ITAR regulations. The district
court found that the Source Code was speech protected by the First Amendment, ... and subsequently granted
summary judgment to Bernstein on his First Amendment claims, holding the challenged ITAR regulations facially
invalid as a prior restraint on speech ....
....
B. Overview of Cryptography
Cryptography is the science of secret writing, a science that has roots stretching back hundreds, and perhaps
thousands, of years. See generally DAVID KHAN, THE CODEBREAKERS (2d ed. 1996). For much of its
history, cryptography has been the jealously guarded province of governments and militaries. In the past twenty
years, however, the science has blossomed in the civilian sphere, driven on the one hand by dramatic theoretical
innovations within the field, and on the other by the needs of modern communication and information
technologies. As a result, cryptography has become a dynamic academic discipline within applied mathematics.
It is the cryptographer's primary task to find secure methods to encrypt messages, making them unintelligible to all
except the intended recipients:
The applications of encryption, however, are not limited to ensuring secrecy; encryption can also be employed to ensure data integrity, authenticate users, and facilitate nonrepudiation (e.g., linking a specific message to a specific sender). ...
It is, of course, encryption's secrecy applications that concern the government. The interception and deciphering of
foreign communications has long played an important part in our nation's national security efforts. In the words of
a high-ranking State Department official:
Thus, cryptographers use source code to express their
scientific ideas in much the same way that mathematicians use equations or economists use graphs. Of course, both
mathematical equations and graphs are used in other fields for many purposes, not all of which are expressive.
But mathematicians and economists have adopted these modes of expression in order to facilitate the precise and
rigorous expression of complex scientific ideas. Similarly, the undisputed record here makes it clear that
cryptographers utilize source code in the same fashion.
In light of these considerations, we conclude that encryption software, in its source code form and as
employed by those in the field of cryptography, must be viewed as expressive for First Amendment purposes, and
thus is entitled to the protections of the prior restraint doctrine. If the government required that mathematicians
obtain a prepublication license prior to publishing material that included mathematical equations, we have no
doubt that such a regime would be subject to scrutiny as a prior restraint. The availability of alternate means of
expression, moreover, does not diminish the censorial power of such a restraint -- that Adam Smith wrote Wealth
of Nations without resorting to equations or graphs surely would not justify governmental prepublication review
of economics literature that contain these modes of expression.
The government, in fact, does not seriously dispute that source code is used by cryptographers for expressive
purposes. Rather, the government maintains that source code is different from other forms of expression
(such as blueprints,
recipes, and "how-to" manuals) because it can be used to control directly the operation of a computer without
conveying information to the user. In the government's view, by targeting this unique functional aspect of source
code, rather than the content of the ideas that may be expressed therein, the export regulations manage to skirt
entirely the concerns of the First Amendment. This argument is flawed for at least two reasons.
First, it is not at all obvious that the government's view reflects a proper understanding of source code. As
noted earlier, the distinguishing feature of source code is that it is meant to be read and understood by humans,
and that it cannot be used to control directly the functioning of a computer. While source code, when properly
prepared, can be easily compiled into object code by a user, ignoring the distinction between source and object
code obscures the important fact that source code is not meant solely for the computer, but is rather written in a
language intended also for human analysis and understanding.
Second, and more importantly, the government's argument, distilled to its essence, suggests that even one drop of
"direct functionality" overwhelms any constitutional protections that expression might otherwise enjoy. This
cannot be so. The distinction urged on us by the government would prove too much in this era of rapidly
evolving computer capabilities. The 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. The First Amendment is concerned with expression, and
we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the
Constitution.
The government also contends that the challenged regulations are immune from prior restraint analysis because they are "laws of general application" rather than being "directed narrowly and specifically at expression." ... We cannot agree. Because we conclude that source code is utilized by those in the cryptography field as a means of expression, and because the regulations apply to encryption source code, it necessarily follows that the regulations burden a particular form of expression directly.
The Supreme Court in Lakewood explored what it means to be a "law of general application" for prior restraint purposes. In that case, the Court cited a law requiring building permits as a "law of general application" that would not be subject to a facial attack as a prior restraint, reasoning that such a law carried "little danger of censorship, " even if it could be used to retaliate against a disfavored newspaper seeking to build a printing plant. ... In the Court's view, "such laws provide too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse." ... Unlike a building permit ordinance, which would afford government officials only intermittent and unpredictable opportunities to exercise unrestrained discretion over expression, the challenged EAR regulations explicitly apply to expression and place scientific expression under the censor's eye on a regular basis. In fact, there is ample evidence in the record establishing that some in the cryptography field have already begun censoring themselves, for fear that their statements might influence the disposition of future licensing applications. ... In these circumstances, we cannot conclude that the export control regime at issue is a "law of general application" immune from prior restraint analysis.17
Because the prepublication licensing scheme challenged here vests unbridled discretion in government officials, and because it directly jeopardizes scientific expression, we are satisfied that Bernstein may properly bring a facial challenge against the regulations.18 We accordingly turn to the merits.
B. Are the regulations an impermissible prior restraint?
"[T]he protection even as to previous restraint is not absolutely unlimited." ...The
Supreme Court has suggested that the "heavy presumption" against prior restraints may be overcome where
official discretion is bounded by stringent procedural safeguards. ... As our analysis above
suggests, the challenged regulations do not qualify for this First Amendment safe harbor. In Freedman v.
Maryland, the Supreme Court set out three factors for determining the validity of licensing schemes that impose a
prior restraint on speech: (1) any restraint must be for a specified brief period of time; (2) there must be
expeditious judicial review; and (3) the censor must bear the burden of going to court to suppress the speech in
question and must bear the burden of proof. ... The district court found that the procedural
protections provided by the EAR regulations are "woefully inadequate" when measured against these
requirements. ... We agree.
Although the regulations require that license applications be resolved or referred to the President within 90
days, ... there is no time limit once an application is referred to the President. Thus, the
90-day limit can be rendered meaningless by referral. Moreover, if the license application is denied, no firm time
limit governs the internal appeals process. ... Accordingly, the EAR regulations do not satisfy the first
Freedman requirement that a licensing decision be made within a reasonably short, specified period of time. ...
We conclude that the challenged regulations allow the government to restrain speech indefinitely with no clear criteria for review. As a result, Bernstein and other scientists have been effectively chilled from engaging in valuable scientific expression. Bernstein's experience itself demonstrates the enormous uncertainty that exists over the scope of the regulations and the potential for the chilling of scientific expression. In short, because the challenged regulations grant boundless discretion to government officials, and because they lack the required procedural protections set forth in Freedman, we find that they operate as an unconstitutional prior restraint on speech.
C. Concluding comments.
We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive.
Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based
restrictions, subject to the strictest constitutional scrutiny, or whether they are, instead, content-neutral restrictions
meriting less exacting scrutiny. We hold merely that because the prepublication licensing regime challenged here
applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate
procedural safeguards, it constitutes an impermissible prior restraint on speech.
We will, however, comment on two issues that are entwined with the underlying merits of Bernstein's
constitutional claims. First, we note that insofar as the EAR regulations on encryption software were intended to
slow the spread of secure encryption methods to foreign nations, the government is intentionally retarding the
progress of the flourishing science of cryptography. To the extent the government's efforts are aimed at
interdicting the flow of scientific ideas (whether expressed in source code or otherwise), as distinguished from
encryption products, these efforts would appear to strike deep into the heartland of the First Amendment. In this
regard, the EAR regulations are very different from content-neutral time, place and manner restrictions that may
have an incidental effect on expression while aiming at secondary effects.
Second, we note that the government's efforts to regulate and control the spread of knowledge relating to
encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic
age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This
reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to
communicate privately. Cellular phones are subject to monitoring, email is easily intercepted, and transactions
over the internet are often less than secure. Something as commonplace as furnishing our credit card number,
social security number, or bank account number puts each of us at risk. Moreover, when we employ electronic
methods of communication, we often leave electronic "fingerprints" behind, fingerprints that can be traced back to
us. Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has
our ability to shield our affairs from prying eyes been at such a low ebb. The availability and use of secure
encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to
control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on
pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of
encryption's bounty. Viewed from this perspective, the government's efforts to retard progress in cryptography
may implicate the Fourth Amendment, as well as the right to speak anonymously ... and the right to informational
privacy .... While
we leave for another day the resolution of these difficult issues, it is important to point out that Bernstein's is a suit
not merely concerning a small group of scientists laboring in an esoteric field, but also touches on the public
interest broadly defined.
CONCLUSION
Because the prepublication licensing regime challenged by Bernstein applies directly to scientific expression, vests
boundless discretion in government officials, and lacks adequate procedural safeguards, we hold that it constitutes
an impermissible prior restraint on speech. We decline the invitation to line edit the regulations in an attempt to
rescue them from constitutional infirmity, and thus endorse the declaratory relief granted by the district court.
AFFIRMED.
Bright, Circuit Judge, separately concurring.
I join Judge Fletcher's opinion. I do so because the speech aspects of encryption source code represent
communication between computer programmers. I do, however, recognize the validity of Judge Nelson's view that
encryption source code also has the functional purpose of controlling computers and in that regard does not
command protection under the First Amendment. The importance of this case suggests that it may be appropriate
for review by the United States Supreme Court.
T.G. Nelson, Circuit Judge, Dissenting:
Bernstein was not entitled to bring a facial First Amendment challenge to the EAR, and the district court
improperly granted an injunction on the basis of a facial challenge. I therefore respectfully dissent.
The basic error which sets the majority and the district court adrift is the failure to fully recognize that the basic
function of encryption source code is to act as a method of controlling computers. As defined in the EAR
regulations, encryption source code is "[a] precise set of operating instructions to a computer, that when compiled,
allows for the execution of an encryption function on a computer." ... Software engineers generally
do not create software in object code--the series of binary digits (1's and 0's)--which tells a computer what to do
because it would be enormously difficult, cumbersome and time-consuming. Instead, software engineers use
high-level computer programming languages such as "C" or "Basic" to create source code as a shorthand
method for telling the computer to perform a desired function. In this respect, lines of source code are the
building blocks or the tools used to create an encryption machine. ... Encryption source code, once compiled,
works to make computer communication and transactions secret; it creates a lockbox of sorts around a message
that can only be unlocked by someone with a key. It is the function or task that encryption source code performs
which creates its value in most cases. This functional aspect of encryption source code contains no expression; it
is merely the tool used to build the encryption machine.
This is not to say that this very same source code is not used expressively in some cases. Academics, such as
Bernstein, seek to convey and discuss their ideas concerning computer encryption. As noted by the majority,
Bernstein must actually use his source code textually in order to discuss or teach cryptology. In such
circumstances, source code serves to express Bernstein's scientific methods and ideas.
While it is conceptually difficult to categorize encryption source code under our First Amendment framework, I
am still inevitably led to conclude that encryption source code is more like conduct than speech. Encryption source
code is a building tool. Academics and computer programmers can convey this source code to each other in order
to reveal the encryption machine they have built. But, the ultimate purpose of encryption code is, as its name
suggests, to perform the function of encrypting messages. Thus, while encryption source code may occasionally
be used in an expressive manner, it is inherently a functional device.
We are not the first to examine the nature of encryption source code in terms of First Amendment protection.
Judge Gwin of the United States District Court for the Northern District of Ohio also explored the function versus
expression conundrum of encryption source code at some length in Junger v. Daley, 8 F. Supp. 2d 708 (N.D. Ohio
1998). Junger, like Bernstein, is a professor, albeit a law professor, who wished to publish in various forms his
work on computers, including a textbook, Computers and the Law. The book was determined by the Government
to be subject to export without a license, but his software programs were determined to come within the licensing
provisions of the EAR. In the course of rejecting Junger's claims, the court said:
Accordingly, I respectfully dissent.
8 In using the term "facial challenge" in the prior restraint context, the Supreme Court has meant two distinct things. First, if entitled to bring a facial challenge, a plaintiff need not apply for a license before challenging thelicensing regime. ... This is a question of standing. Second, a litigant challenging an enactment on its face champions the rights of those not before the court and thus may attack the statute "whether or not his conduct could be proscribed by a properly drawn statute." ... This goes to the scope of the constitutional challenge. (Return to text accompanying footnote 8)
11 It must be emphasized, however, that source code is merely text, albeit text that conforms to stringent
formatting and punctuation requirements. For example, the following is an excerpt from Bernstein's Snuffle source
code:
for (; ;)
(
uch = gtchr();
if (!(n & 31))
(
for (i = 0; i64; i++)
l [ ctr[i] ] = k[i] + h[n - 64 + i]
Hash512 (wm, wl, level, 8);
)
As source code goes, Snuffle is quite compact; the entirety of the Snuffle source code occupies fewer than four
printed pages.
(Return
to text accompanying footnote 11)
12 Source code's power to convey algorithmic information is illustrated by the declaration of MIT Professor
Harold Abelson:
The square root of a number X is the number Y such that Y
times Y equals X. This is declarative knowledge. It tells us some-
thing about square roots. But it doesn't tell us how to find a
square root.
In contrast, consider the following ancient algorithm, attributed
to Heron of Alexandria, for approximating square roots:
To approximate the square root of a positive number X,
- Make a guess for the square root of X.
- Compute an improved guess as the average of the guess
and X divided by the guess.
- Keep improving the guess until it is good enough.
Heron's method doesn't say anything about what square roots
are, but it does say how to approximate them. This is a piece of
imperative "how to" knowledge.
Computer science is in the business of formalizing imperative
knowledge -- developing formal notations and ways to reason
and talk about methodology. Here is Heron's method formalized
as a procedure in the notation of the Lisp computer language:
(define (sqrtx)
(define (good-enough? guess)
((abs (- (square guess) x)) tolerance))
(define (improve guess)
(average guess (/ x guess)))
(define (try guess)
(if (good-enough? guess)
guess
(try (improve guess))))
(try 1)),
(Return
to text accompanying footnote 12)
17 The government also argues that the EAR regulations are "laws of general application" because they are not purposefully aimed at suppressing any particular ideas that may be expressed in source code. With respect to this contention, the panel (including the dissenter) agree that the purpose of the regulations is irrelevant to prior restraint analysis. It is clear that a prior restraint analysis applies equally to content-neutral or content-based enactments. ... Lakewood, 486 U.S. at 764 ("[E]ven if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that official's boundless discretion.") (emphasis in original). Indeed, where unbridled discretion is vested in a governmental official, it is difficult to know whether a licensing regime is content-based or content-neutral. Accordingly, the government's purpose in censoring encryption source code is, at this stage of our First Amendment inquiry, beside the point. In other words, a prepublication licensing regime that has a chilling and censorial effect on expression is properly subject to facial attack as a prior restraint, whatever the purpose behind its enactment. See Lakewood, 486 U.S. at 759 (upholding facial attack against newsrack ordinance because of censorial effects, without discussing governmental purpose for enacting the ordinance). (Return to text accompanying footnote 17)
18 It is at this juncture that we part ways with the dissent. The dissent concedes that source code can be
expressive. Nevertheless, the dissent contends that Bernstein is not entitled to bring a facial attack against the
EAR regulation. This argument, it seems to us, is based on two foundations.
First, the dissent conceives of the exchange of source code among scientists as "conduct." We disagree. The
source code at issue here is text intended for human understanding, albeit in a specialized language. To say
that the "export" of this text is "conduct " for First Amendment purposes, rather than straightforward scientific
"expression," is to call into question all distribution and circulation of scientific texts that communicate ideas
by using specialized languages. Of course, source code may be functional as well as expressive. We are not
persuaded, however, that that fact transmogrifies the distribution of scientific texts from "expression" into
"conduct" deserving of diminished First Amendment protection.
Having cast the question as one relating to "conduct," the dissent then takes a second step. Drawing from
Lakeside, the dissent asks whether the "conduct" -- the exchange of cryptographic source code -- is "commonly
associated with expression." This question the dissent answers in the negative; in other words, the dissent
concludes that source code is not used expressively often enough. We find this conclusion somewhat perplexing,
as there is nothing in the record to support it. Bernstein has introduced extensive expert evidence to support his
contention that source code is frequently used for expressive purposes. The government, however, has
failed to introduce anything into the record to rebut this evidence. In fact, the government has made it clear that it
means to control the export of source code no matter how commonly associated it may be with expresssion:
"Whatever ideas may be reflected in the software, or the intent of the exporter to convey ideas, the NSA
recommends that encryption software be controlled for export solely on the basis of what it does. . . ."
(Return to text accompanying footnote 18)