Internet Library of Law
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Encryption - Internet Library of Law and Court Decisions - Updated January 1, 2002

The Ninth Circuit, in a two to one decision, holds that the Export Administration Regulations , 15 C.F.R. Pts. 730 - 734("EAR"), represent an unconstitutional prior restraint on speech that runs afoul of the First Amendment insofar as they prohibit the export of designated encryption software without a license. The heart of the court's decision was its determination that the source code used in such encryption software is expressive speech entitled to protection under the First Amendment.

This holding was based on the majority's determination that those trained in computer programming can both read and use source code to communicate with one another. The court analogized source code to equations and graphs utilized by mathematicians, which are also means used to express ideas.

Finding that the source code constituted protectable speech, the court determined that the EAR's requirement that plaintiff obtain a license before being permitted to export source code was an impermissible prior restraint on speech. While such restraints are permitted in limited circumstances, they must, among other things, be for a specified brief period of time and permit expeditious judicial review. Because the challenged regulatory scheme did not set a time limit by which the appropriate agency had to either pass on an application for a license or determine any appeal from such a ruling, the court held that it lacked the requisite procedural safeguards and hence was unconstitutional.

Judge Nelson wrote a strong dissent premised on his conclusion that source code was not expressive speech but rather, in the main, a functional tool utilized in the operation of computers. As such, concluded Judge Nelson, plaintiff was not permitted to mount a facial challenge to the regulations at issue. It seems likely that this issue will be addressed by the Supreme Court in the future.

Reversing the court below, the California Court of Appeal denied plaintiff's application for a preliminary injunction, by which plaintiff sought to enjoin defendant Andrew Bunner and others from publishing on web sites the computer program DeCSS. DeCSS permits a user to evade the "content scramble system" which both encrypts DVDs and is designed to prevent their unauthorized use and duplication. Plaintiff claimed that it was entitled to such relief under California's Uniform Trade Secret Act, Civil Code Section 3426.1, et seq. The court rejected plaintiff's application on the grounds that such an injunction was an impermissible prior restraint on speech which ran afoul of the First Amendment. This decision was premised on the court's determination that defendant's publication on a web site of the source code of the DeCSS program was a form of speech subject to First Amendment protection.

(Court rejects Professor's challenge that the United States Export Administration Regulations, 15 C.F.R. part 730 et seq., violate his First Amendment rights by prohibiting the Professor from posting encryption software he authored on the Internet without a license. Central to the court's holding was its determination that encryption source code is not sufficiently expressive of ideas to merit First Amendment protection. Rejecting the court's determination in Bernstein v. United States Dep't. of State, 922 F. Supp. 1426 (N.D. Cal. 1996), the court held that "although encryption source code may occasionally be expressive, its export is not protected conduct under the First Amendment ... [E]ncryption software is especially functional rather than expressive. ... [T]he software carries out the function of encryption ... [and] in the overwhelming majority of circumstances ... is exported to transfer functions, not to communicate ideas.")