## Facts

- Daniel J. Bernstein was a mathematician and academic working in cryptography, a field that uses mathematical methods to keep electronic information confidential by transforming readable text into unreadable text and back again with a key.
- Bernstein created an encryption algorithm he called “Snuffle” and described it in both an academic paper and computer source code written in a programming language.
- Because federal export controls treated certain cryptographic items and technical data as export-regulated, Bernstein sought guidance from the U.S. Department of State on whether his paper and source code were subject to the International Traffic in Arms Regulations (ITAR).
- The State Department determined that both the paper and the source code were subject to ITAR controls, meaning Bernstein would need government authorization before “exporting” the materials.
- The export-control rules defined “export” broadly enough to reach common academic distribution—such as sharing materials electronically or posting them where foreign persons could access them—creating a risk that publishing or teaching from the code would require prior government approval.
- Bernstein filed suit seeking declaratory and injunctive relief, alleging that the export-control licensing scheme, as applied to his intended publication and discussion of Snuffle, violated the First Amendment.
- While the litigation was pending, the federal government shifted primary control of many non-military encryption exports from the State Department’s ITAR framework to the Department of Commerce under the Export Administration Regulations (EAR), and Bernstein amended his pleadings to address the revised licensing regime.
- The opinion at 974 F. Supp. 1288 resolved the parties’ second round of cross-motions for summary judgment focused on whether the EAR-based licensing requirements for exporting cryptographic devices, software, and related technology impermissibly restricted speech.

## Issues

1. Whether cryptographic source code is “speech” protected by the First Amendment.
2. Whether the encryption export-control licensing requirements (as implemented through the revised regulatory scheme) function as a prior restraint on speech when they require government approval before online publication or other electronic dissemination.
3. If the regulations impose a prior restraint, whether they provide the narrow standards and procedural safeguards the First Amendment requires for licensing schemes that burden expression.

## Decision

- The court held that cryptographic source code is protected expression under the First Amendment because it communicates information and ideas to people who can read and understand the language of code.
- The court concluded that the encryption export-control licensing rules operated as a prior restraint to the extent they conditioned publication and other ordinary scholarly communications involving cryptographic source code on prior government permission.
- The court found the scheme constitutionally defective because it lacked adequate limits on licensing discretion and did not supply the required procedural protections associated with prior restraints, including timely decision-making and meaningful opportunities for review.
- The court rejected treating electronic publication as categorically less protected than print publication, reasoning that the First Amendment applies fully to Internet communications and that making “publication” an “export” when it is (or could be) electronic raised serious constitutional problems.
- The court granted relief to Bernstein on his First Amendment challenge in significant part and denied the government’s request for judgment upholding the licensing scheme as applied to Bernstein’s intended publication and discussion of his cryptographic work.

## Legal Principles

- Computer source code, including encryption source code, can be protected speech when it is used to communicate information and ideas among people.
- A regulatory system that requires prior government approval before publishing protected expression is a prior restraint and is presumptively unconstitutional.
- Prior-restraint licensing regimes must contain clear, narrow, and objective criteria that constrain official discretion.
- Prior restraints must include procedural safeguards suited to speech licensing, including prompt administrative action and access to timely and effective review.
- The government may not avoid First Amendment limits by drawing unstable distinctions between print and electronic publication when the regulated material is expressive and the regulation effectively conditions publication on a license.

## Conclusion

Bernstein v. United States Department of State held that encryption source code is protected by the First Amendment and that the government’s export-licensing rules, as applied to the electronic publication and academic communication of such code, operated as an unconstitutional prior restraint because they required advance permission for ordinary expressive activities without sufficient limiting standards and procedural safeguards.


Bernstein v. United States Department of State, 974 F. Supp. 1288 (1997)