Internet Library of Law
and Court Decisions

Daniel J. Bernstein v. United States Department of State, et al.

In this case, the plaintiff had developed an encryption algorithm which he had described in both an English language paper and two source codes. By using the source codes, one could translate an english language communication into and out of an unreadable cipher text, thereby allowing the message to be transmitted without fear of it being read by anyone other than the intended recipient. The Department of State classified the source code as a defense article subject to the strictures of the Arms Export Control Act and the International Traffic in Arms Regulations. Among other things, this classification obligated plaintiff to obtain a license before he could export the source code out of the United States, or disclose it to any foreign person inside or outside the United States. This, in turn, barred plaintiff from publishing the source code. Plaintiff raised a number of constitutional challenges to the Arms Export Control Act, arguing both that the statute infringed his First Amendment right to free speech, and was also impermissibly vague and overbroad. Defendants moved to dismiss, arguing, inter alia, that plaintiff failed to present a "colorable constitutional claim because this case does not concern "speech" protected by the First Amendment....". Instead, argued the defendants, the source code was akin to conduct which was not sufficiently imbued with the elements of communication to fall within the protections of the First Amendment as its only purpose was functional -- to instruct a computer how to translate information. The District Court disagreed, holding that the source code was protectable speech, and finding that plaintiff had raised a colorable constitutional challenge to the statute in issue. In so holding, the court drew an analogy to music inscribed in code on the roll of a player piano. The roll was speech, even though by itself, it did not communicate information but only caused the piano to play music. The source code had the same effect, and was thus speech.

The full text of this decision can be found on a website maintained by the David J. Loundy.