Bernstein v. United States Department of Justice: A cryptic interpretation of speech

Brigham Young University Law Review, 2000 by Hanson, Seth

C. Pre-Bernstein Decisions As one readily observes, different types of speech receive different levels of protection. On a more fundamental level, if an activity is not sufficiently expressive, the government can regulate that activity without violating free speech rights. Recent technological advances have forced courts to determine if encryption software is expression meriting free speech protection or if it is activity that is not expressive enough to qualify as speech.

The exportation of encryption source code has been subject to some form of licensing regulation since 1977.27 The primary purpose of these licensing regulations has been to protect national security interests by withholding encryption technology from organized crime, espionage rings, and terrorists. The first case to address the issue of whether encryption licensing regulations violated free speech protections was Karn v. United States Department of State, 28 decided in March of 1996.

1. Kam v. United States Department of State Bruce Schneier authored a book on cryptography, which was sold with an accompanying diskette, both of which contained an encryption source code. Philip Karn was interested in making money by exporting these items and wanted to know whether he would need an export license under the relevant International Traffic in Arms Regulations (ITAR).29 After Karn petitioned, the State Department concluded that the book was not subject to ITAR but the diskette was. Karn appealed this determination to the Assistant Secretary of State for Political Military Affairs, Thomas McNamara.3 McNamara also concluded that because the diskette contained encryption software it was a "defense article" according to the United States Munitions List.31 Karn brought an action in the District Court for Washington D.C. alleging, among other things, that regulation of the diskette violated his free speech rights.3a

According to the decision, Karn claimed the diskette was speech because it "contain[ed] `comments' interspersed throughout the source code which are useful only to a human and are ignored by the computer, and because the source code and comments taken together teach humans how to speak in code."33 In addressing Karn's free speech claim, the court simply assumed the diskette was speech within the meaning of the First Amendment.34 Even with this generous assumption, the court upheld the constitutionality of ITAR under the O'Brien test because it believed the regulations were content neutral, were within the constitutional powers of the government, and were narrowly tailored to an important and substantial government interest.35 Moreover, the court held that Karn improperly requested the court to decide encryption policy-an issue more appropriately resolved by Congress and the President.36 Because the Karn court simply assumed encryption source code was speech, the remainder of the court's analysis is not essential to this Note. However, Junger n. Daley,3' the only other pre-Bernstein case to address the issue, is much more thorough in its analysis than the Karn decision.