EFFector Online: Bernstein case - Judge says sourceis protected

Rohit Khare (khare@pest.w3.org)
Thu, 18 Apr 96 11:23:02 -0400

> Even if you don't live in the U.S., the anti-Internet hysteria will soon be
> visiting a legislative body near you. If it hasn't already.

Date: Wed, 17 Apr 1996 17:48:01 -0700
From: editor@eff.org
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EFFector Online Volume 09 No. 04 Apr. 17, 1996 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424


Privacy & Free Speech Victory in Early Phase of Bernstein Case
EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia
CDA Case Updates: Net 1, Government 0
Upcoming Events
Quote of the Day
What YOU Can Do

* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *


Subject: Privacy & Free Speech Victory in Early Phase of Bernstein Case


PRESS RELEASE Electronic Frontier Foundation Contacts:
April 17, 1996 Shari Steele, Staff Counsel
301/375-8856, ssteele@eff.org
Lori Fena, Executive Director
415/436-9333, lori@eff.org

Denying the government's motion for dismissal in mathematician Daniel
Bernstein's suit against the State Department, Judge Marilyn Patel in the
Northern District of California ruled Monday that source code in
Bernstein's cryptographic algorithm, "Snuffle," is speech that is
protected from prior restraint by the First Amendment.


This is the first time a U.S. court has ruled that source code is speech
under First Amendment analysis. Previously, courts have held that
software is speech for copyright law only.

The decision states in part:

"This court can find no meaningful difference between computer language,
particularly high-level languages as defined above, and German or
French....Like music and mathematical equations, computer language is
just that, language, and it communicates information either to a computer
or to those who can read it....Thus, even if Snuffle source code, which
is easily compiled into object code for the computer to read and easily
used for encryption, is essentially functional, that does not remove it
from the realm of speech....For the purposes of First Amendment analysis,
this court finds that source code is speech."

The full text of the decision can be found at
in GIF image format (ASCII text will be made available as soon as possible,
at http://www.eff.org/pub/Legal/Cases/Bernstein_v_DOS/Legal/041596.decision

Judge Patel's acknowledgment that source code enjoys Constitutional
protection has implications that reach far beyond cases involving the
export of cryptography. The decision holds importance to the future of
secure electronic commerce and lays the groundwork needed to expand First
Amendment protection to electronic communication.

Because of its far-reaching implications, the Bernstein case is being
watched closely not only by privacy advocates, but by the entire computer
industry, the export and cryptography communities and First Amendment


The decision allows Bernstein to continue with his lawsuit that the
International Traffic in Arms Regulation (ITAR) acts as a prior restraint
on speech and that the ITAR is overbroad and vague.

EFF is very pleased with Judge Patel's ruling and believes that it bodes
well for Bernstein's ultimate success in trial, which is now scheduled to
proceed with the normal pre-trial and trial sequence of events.

The court drew an important distinction between the Bernstein case and
other cases involving export controls on cryptography. The government has
cited several cases involving the Export Administration Act as reasons
why the Bernstein case should be dismissed. Judge Patel recognized that
the Constitutional questions being raised by Bernstein differ
significantly from the policy questions raised in the cases introduced by
the government.

Judge Patel also ruled that Bernstein could bring his case even though
the Arms Export Control Act specifically precludes judicial review,
because what Bernstein is asking the court to review (i.e., the
constitutionality of the statute and its regulations) was not what had
been precluded (i.e., the government's determination in a particular
instance whether or not something was exportable). "With respect to
constitutional questions, the judicial branch not only possesses the
requisite expertise to adjudicate these issues, it is also the best and
final interpreter of them."


As part of her decision, Judge Patel determined that only the source code
was at issue in the case, not Bernstein's academic paper describing the
source code. Bernstein tried to get the government to rule separately on
the paper and the code back in 1993 by filing separate commodity
jurisdiction requests. The State Department merged the requests and
rejected them all. On June 29, 1995, after Bernstein and EFF filed suit,
the government sent Bernstein a letter saying that the paper could be
published and never had been forbidden. While Judge Patel claimed that
the issue of the paper now appeared to be moot, she commented, "It is
disquieting than an item defendants now contend could not be subject to
regulation was apparently categorized as a defense article and subject to
licensing for nearly two years, and was only reclassified after plaintiff
initiated this action."


EFF, a non-profit civil liberties organization working in the public
interest to protect privacy, free expression, and access to online
resources and information, is a primary sponsor of the Bernstein case.
EFF helped to find Bernstein pro bono legal counsel, is a member of the
Bernstein legal team, and organized amicus briefs from members of the
academic community and computer industry to support this case.


Subject: EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia

[Note: That's the US state of Georgia, not the Republic of Georgia.]

Many state and local governments have passed legislation that appear to be
unconstitutional restraints on speech sent over the Internet. One state
that recently passed a Bad Law is Georgia. Georgia House Bill 1620
currently sits on the governor's desk awaiting his signature. EFF weighed
in and voiced our concerns about this legislation, asking the governor to
veto the bill.

Among the problems with this legislation is that it would not only make
it a crime to use someone else's trademark in user IDs, domain names, and
other online contexts - regardless of the fact that in most cases the
trademarks in question would not even apply, and it would also
criminalize the use of pseudonyms, and furthermore make it illegal to
link from your homepage to another site without permission.

The constitutionality of the law, as well as it's wisdom, is highly
questionable, as is the compatibility of it with existing intellectual
property law (for example it could essentially grant the first to
trademark a term or name in a particular field a monopoly on online use
of that term or name, in *all* fields, despite that fact that any number
of non-competiting companies can have nearly identical trademarks in
completely different areas of commerce.)

Incidentally, BellSouth appears to be a major mover-n-shaker behind this
legislation, and has filed suit (two days before announcing plans to
enter into the Internet service market, no less) against an
online service, realpages.com, for alleged trademark violation
(BellSouth's tradmark is "The Real Yellow Page". Confusingly similar?
Applicable at all? Not likely.)

Very similar legislation has existed in draft form in California for
some time, and may hit other states and countries soon. Keep and eye out!

EFF Staff Counsel Shari Steele send the following letter to Georgia Governor
Zell Miller, explaining the problems with the new act and encouraging a veto.

Electronic Frontier Foundaton
1550 Bryant Street, Suite 725
San Francisco, CA 94103
(415) 668-7171; (415) 668-7007 (fax)
Internet e-mail: eff@eff.org

Governor Zell Miller
State Capitol
Atlanta, GA 30334

April 16, 1996

Via Facsimile: (404)656-5948

Dear Governor Miller,

I am writing to you in my capacity as Staff Counsel for the Electronic
Frontier Foundation (EFF) to ask that you veto Georgia House Bill 1630,
Computer or telephone network; transmitting misleading data. EFF was
founded in July of 1990 to work on protecting the free speech and privacy
rights of users of new technology. Since that time, EFF has been
involved in numerous battles against laws and actions that restrict the
free speech rights of users of electronic bulletin board systems (BBSs)
and the Internet. I fear that the Georgia legislature has just passed a
bill which, if signed into law, will significantly hamper the
development of the Global Information Infrastructure (GII, frequently
referred to the Information Superhighway) and will result in an
unconstitutional restraint on the free speech rights of the citizens of
Georgia, the United States, and the global Internet.

To help you understand the ramifications of this legislation, I'd like to
take a minute to explain some basic things about electronic communications.
First, individuals are not identified online by their "real world"
names. Instead, they are identified by electronic mail addresses, which are
composed of a "user ID" and the "location" of the individual's network
access provider. Sometimes an individual gets to choose his or her own
e-mail user-ID. But sometimes a random user ID is assigned to the
individual by the service provider. For example, the online service
provider CompuServe assigns user IDs like 102527.2327 and 75223.2153, which
do not clearly identify the sender of the electronic message.

Even where an individual gets to select his or her own user ID, it is rare
that a person identifies him or herself by full name. In fact, many
people identify themselves instead by words or heroes in which they have
a personal interest. For example, I know a person whose user ID is
calliope. I know another whose user ID is mnemonic, named for the
character "Johnny Mnemonic" in the science fiction novel of the same
name by William Gibson. I know yet another whose user ID is elvis.
Even my user ID, which is ssteele, does not clearly distinguish me
from others with the last name of Steele and the first initial "S."

This brings us to the first problem with the current bill. The language of
the bill makes it illegal for a sender of a message to "falsely
identify" him or herself. All of the user IDs I've mentioned
are false identifications, similar to the "handles" people use on citizen's
band radios. It is and has always been legal for people to use any name
they choose as long as it isn't for a fraudulent purpose. I can be
Samuel Clemens to one set of people and Mark Twain to another set and
nobody is harmed. Or Andrew Hamilton and Publius. Or ssteele@eff.org and
Shari Steele. While it is true that some people may be harmed when
others intentionally create confusion, by sending a message designed to
look like it came from an identifiable other person, the bill
criminalizes a vast array of everyday conduct in its attempt to reach this
harm. Besides, there are already laws on the books that make it illegal
to commit fraud or to fraudulently use the likeness of another that can
be enforced where harm has occurred. Georgia House Bill 1630 makes
criminals of the vast majority of us who communicate online.

Next, the Internet is comprised of thousands of computers connected to one
another. The World Wide Web is a graphical area of the Internet that
allows users to move seamlessly from site to site by simply clicking on
a mouse button. This is often referred to as "surfing the net" and is a
basic quality to the World Wide Web. For example, I could get to Wired
magazine's web site by clicking on a button at the Electronic Frontier
Foundation's web site. I then would be seamlessly transported to
Wired's site. Wired magazine loves this arrangement, because
the more people they get visiting their web site, the more successful
the site is.

Which brings us to the second problem with the current bill. The language
of the bill would make it illegal to create a button on our web site
with Wired's "trade name" or "logo" without first obtaining "permission
or authorization" from Wired magazine. Of course Wired magazine would
give us permission -- they do not want to have a web site that no one
visits. In fact, the more sites that "link" to Wired's site, the better
it is for Wired. It's like making it illegal to take a copy of a
newspaper that is labeled "free" on the top without first obtaining
permission from the publisher. Or like making it illegal to look up a
friend's phone number in the phone book and put it into a neighborhood
directory or a bridge club newsletter. The problem is that H.B. 1630
would make criminals out of virtually everyone with a web site (for all web
sites link to others) when the sites being linked to would always give
permission for the link.

Furthermore, because of its vague language, it appears that the bill would
make it a crime even to mention Wired magazine in writing an electronic
review of their magazine or their articles without first obtaining their
permission. The right to criticize other peoples' work is basic to our open
society; it is how errors are corrected and differences of opinion are
aired. It would be senseless to have the right to criticize a story
from the New York Times without being able to mention that the story was
printed in the New York Times! Even if reviewers went to the
effort contemplated in the bill of contacting the company and asking its
permission, many companies would refuse permission to use their names in
reviews that disagreed with the companies. This sabotages the
whole process of critical review that keeps our society tending toward truth.

Finally, the entire purpose of the bill seems to be to protect intellectual
property, such as trademarks and logos. But there are already laws in
place on both federal and state levels that protect these things. The
legislature has created a poorly crafted, unconstitutional law to protect
something that is already protected. There is no rational reason to make
criminals out of all users of the Internet.

I hope that I have helped shed some light on the dangers of this
legislation. The Electronic Frontier Foundation urges you to veto H.B.
1630 as an unnecessary and unconstitutional restriction on the free
speech right of Internet users. I invite you to contact me if you have any
questions or concerns about the legalities surrounding electronic
communications as you consider your actions regarding this bill. My
telephone number is (301)375-8856. And you can reach me via Internet
e-mail at ssteele@eff.org.

Thank you for your consideration.


Shari Steele
Staff Counsel
Electronic Frontier Foundation

cc: Ms. Mary Beth Westmoreland, Georgia Department of Law,
fax: (404) 651-6459
Mr. Michael Bowers, Attorney General, fax: (404) 657-8733


Subject: CDA Case Updates: Net 1, Government 0

The first stage of the CDA trian in Philadelphia is over, with the
government and pro-censorship forces clearly on the defensive. "Expert"
witnesses for the govenment have practically discredited themselves
without the plaintiffs even having to cross examine them. The
Justice Department's demonstration of how and where to find "cyberporn"
was a cheat, and the judges caught it. The government foolishly even tried
early on to rely on the Rimm/CMU "study" of online pornography. The
court has showed quite a bit of skepticism regarding the governments
claims, and a lot of interest in the First Amendment issues at stake.

Many participants in the trial have issued updates on the blow-by-blow
court action, and we have been collecting it at
http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/ so we'll refrain from
reprinting it here.

Closing arguments in the case are set for May 10.


Subject: Upcoming Events

This schedule lists events that are directly EFF-related, or sure to be
of interest to our members. A much more detailed calendar of events
likely to be of interest to all netizens is maintained at:

ftp: ftp.eff.org, /pub/EFF/calendar.eff
gopher: gopher.eff.org, 1/EFF, calendar.eff

Apr. 18 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Ed Cavazos on the topic of Cyberlaw
Users can participate via either WWW or telnet.
URL: http://www.hotwired.com/club/
Telnet: chat.wired.com 2428.

Apr. 18-
19 - Conference on Technological Assaults on Privacy; Rochester
Institute of Technology, Rochester, New York.
Deadline for submitting papers: Feb. 1
Contact: +1 716 475 6643 (voice), +! 716 375 7120 (fax)
Email: privacy@rit.edu

Apr. 21 - ACLU forum on "Cyber Liberties," Phoenix, AZ
Contact: Bob Hirschfeld
Voice: +1 602 265 4692
Fax: +1 602 0259
Email: nolawyer@primenet.com

Apr. 24-
25 + Electronic Democracy, sponsored by Riley Information Services;
Ottawa, Canada
Email: 76470.336@compuser.com
URL: http://www.rileyis.com

Apr. 25 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Ann Beeson of the ACLU. Users can
participate via either WWW (http://www.hotwired.com/club/) or
telnet (chat.wired.com2428).
URL: http://www.hotwired.com/club/

Apr. 29 ! Net-savvy U.S. Rep. Robert Goodlatte, and Sens. Conrad Burns
and Larry Pressler will speak at "Information Security and the 20th
Anniversary of Public Key Cryptography," sponsored by the
Churchill Club; Marriott Hotel, Burlingame, CA.
Contact: +1 408 371 4460
Fax: +1 408 371 4180
Email: chrchllclb@aol.com

May 4 - ACLU forum on Censorship and the Internet User; Souls Unitarian
Church, 4500 Warwick, Kansas City, MO; featuring Laura Murphy,
Executive Director of ACLU's national office in Washington, D.C.
Contact: +1 816 756 3113
Email: bbarrish@falcon.cc.ukans.edu

May 3 + Symposium: "The Law of Information Superhighways and
Multimedia," sponsored by the Eurpoean Lawyers Union, Monaco.
URL: http://www.iway.mc/groupecx/uae

May 6-
8 - IEEE/IACR Security & Privacy Symposium; Oakland, Calif.
Deadline for submissions: Nov. 6, 1995.
Contact: +1 503 725 5842 (voice), +1 503 725 3211 (fax)
Email: sp96@cs.pdx.edu
URL: http://www.cs.pdx.edu/SP96/
FTP: ftp.cs.pdx.edu, /pub/SP96/

May 9 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Jerod Pore of Scamizdat. Users can
participate via either WWW (http://www.hotwired.com/club/) or
telnet (chat.wired.com2428).
URL: http://www.hotwired.com/club/

May 9-
11 + Visions of Privacy for the 21st Century: A Search for Solutions;
Victoria, BC, Canada.
Contact: http://www.cafe.net./gvc.foi

May 10 - Workshop on Medical Records Privacy, sponsored by the Consumer
Project on Technology, Washington, D.C.
Contact: Manon Ress, +1 202 387 8030
Email mress@essential.org
URL: http://www.essential.org/cpt

May 16 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Sameer Parekh of Community Connection.
Users can participate via either WWW (http://www.hotwired.com/club/)
or telnet (chat.wired.com2428).
URL: http://www.hotwired.com/club/

May 20-
21 ! Internet Privacy and Security Workshop, sponsored by the
Privacy and Security Working Group of he Federal Networking Council
and the Research Program on Communications Policy Center for
Technology, Policy, and Industrial Development at Massachusetts
Institute of Technology; Haystack Observatory, Boston, MA.
Deadline for abstracts: April 14.
Contact: Internet Security and Privacy Workshop c/o Joseph
Reagle, Research Program on Communications Policy, MIT, One
Amherst St. (E40-218), Cambridge, MA 02139
Voice: +1 617 253 4138
Fax: +1 617 253 7326
Email: papers@rpcp.mit.edu

May 23 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Gary Chapman.
Users can participate via either WWW (http://www.hotwired.com/club/)
or telnet (chat.wired.com2428).
URL: http://www.hotwired.com/club/

May 28-
31 - Harvard Conference on the Internet and Society, Harvard
University, Cambridge, MA.
Contact: +1 617 432 1NET
Email: harvnet@harvard.edu
URL: http://www.harvnet.harvard.edu


Subject: Quote of the Day

"It shouldn't be too much of a surprise that the Internet has evolved
into a force strong enough to reflect the greatest hopes and fears of
those who use it. After all, it was designed to withstand nuclear war,
not just the puny huffs and puffs of politicians and religious fanatics."
- Denise Caruso (digital commerce columnist, _New_York_Times_, EFF
boardmember emeritus)

Find yourself wondering if your privacy and freedom of speech are safe
when bills to censor the Internet are swimming about in a sea of of
surveillance legislation and anti-terrorism hysteria? Worried that in
the rush to make us secure from ourselves that our government
representatives may deprive us of our essential civil liberties?
Concerned that legislative efforts nominally to "protect children" will
actually censor all communications down to only content suitable for
the playground? Alarmed by commercial and religious organizations abusing
the judicial and legislative processes to stifle satire, dissent and

Join EFF!

Even if you don't live in the U.S., the anti-Internet hysteria will soon
be visiting a legislative body near you. If it hasn't already.


Subject: What YOU Can Do

* The Communications Decency Act & Other Censorship Legislation

The Communications Decency Act and similar legislation pose serious
threats to freedom of expression online, and to the livelihoods of system
operators. The legislation also undermines several crucial privacy

Business/industry persons concerned should alert their corporate govt.
affairs office and/or legal counsel. Everyone should write to their own
Representatives and Senators, letting them know that such abuses of
public trust will not be tolerated, that legislators who vote against
your free speech rights will be voted against by you in the next elections.

Join in the Blue Ribbon Campaign - see http://www.eff.org/blueribbon.html


Support the EFF Cyberspace Legal Defense Fund:

For more information on what you can do to help stop this and other
dangerous legislation, see:

ftp.eff.org, /pub/Alerts/
gopher.eff.org, 1/Alerts

If you do not have full internet access (e.g. WWW), send your request
for information to ask@eff.org.

* New Crypto-Privacy Legislation

Urge your Senators and Representatives to call for hearings! Not much
else needs to be done on this right this moment, but expect this issue to
heat up rapidly. Pointers to Congress contact info are below. Action is
expected NEXT WEEK.

Keep an eye on http://www.eff.org/pub/Activism/index.html#crypto

* Digital Telephony/Comms. Assistance to Law Enforcement Act

The FBI is now seeking both funding for the DT/CALEA wiretapping provisions,
and preparing to require that staggering numbers of citizens be
simultaneously wiretappable.

To oppose the funding, write to your own Senators and Representatives
urging them to vote against any appropriations for wiretapping.

We are aware of no major action on this threat at present, but keep your
eyes peeled. It will be back.

* Anti-Terrorism Bills

Several bills threatening your privacy and free speech have been introduced
recently. None of them are close to passage at this very moment, but
this status may change. Urge your Congresspersons to oppose these
unconstitutional and Big-Brotherish bills, which threaten freedom of
association, free press, free speech, and privacy. One such bill passed
last week, stripped of most of the more onerous provisions. Keep it up.
Write to your legislators: No secret trials and deportations, no
expansion of wiretapping scope or authority, no national or "smart-card"
ID systems!

For more information on some of this legislation, see

* The Anti-Electronic Racketeering Act

This bill is unlikely to pass in any form, being very poorly drafted, and
without much support. However, the CDA is just as bad and passed with
flying colors [the jolly roger?] in Congress. It's better to be safe
than sorry. If you have a few moments to spare, writing to, faxing, or
calling your Congresspersons to urge opposition to this bill is a good

* Medical Privacy Legislation

Several bills relating to medical privacy issues are floating in Congress
right now. Urge your legislators to support only proposals that *truly*
enhance the medical privacy of citizens.

More information on this legislation will be available at
http://www.eff.org/pub/Privacy/Medical/ soon. Bug mech@eff.org to make
it appear there faster. :)

* Find Out Who Your Congresspersons Are

Writing letters to, faxing, and phoning your representatives in Congress
is one very important strategy of activism, and an essential way of
making sure YOUR voice is heard on vital issues.

EFF has lists of the Senate and House with contact information, as well
as lists of Congressional committees. (A House list is included in this
issue of EFFector). These lists are available at:
ftp.eff.org, /pub/Activism/Congress_cmtes/
gopher.eff.org, 1/EFF/Issues/Activism/Congress_cmtes

The full Senate and House lists are senate.list and hr.list, respectively.
Those not in the U.S. should seek out similar information about their
own legislative bodies. EFF will be happy to archive any such
information provided.

If you are having difficulty determining who your Representatives are,
try contacting your local League of Women Voters, who maintain a great
deal of legislative information, or consult the free ZIPPER service
that matches Zip Codes to Congressional districts with about 85%
accuracy at:

Computer Currents Interactive has provided Congress contact info, sorted
by who voted for and against the Communcations Decency Act:

* Join EFF!

You *know* privacy, freedom of speech and ability to make your voice heard
in government are important. You have probably participated in our online
campaigns and forums. Have you become a member of EFF yet? The best way to
protect your online rights is to be fully informed and to make your
opinions heard. EFF members are informed and are making a difference. Join
EFF today!

For EFF membership info, send queries to membership@eff.org, or send any
message to info@eff.org for basic EFF info, and a membership form.



EFFector Online is published by:

The Electronic Frontier Foundation
1550 Bryant St., Suite 725
San Francisco CA 94103 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
Membership & donations: membership@eff.org
Legal services: ssteele@eff.org
General EFF, legal, policy or online resources queries: ask@eff.org

Editor: Stanton McCandlish, Online Activist, Webmaster (mech@eff.org)
Assoc. Editors: Ryan Thornburg, Communications Intern (rmt@eff.org)
Dennis Derryberry, Communications Intern (dennis@eff.org)

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End of EFFector Online v09 #04 Digest