Court overturns US encryption export ban

A US court has ruled that restrictions on the export of strong encryption technology are unconstitutional.

Judges at the Ninth Circuit Court of Appeals in California have ruled that source code is a form of speech, and is thus protected by the constitution. In her summation, Judge Betty Fletcher wrote that the government's restrictions are disrupting the free flow of scientific thought and that "strikes deep in to the heartland of the first amendment".

The ruling is a blow to the US government, which has long argued that restrictions on encryption are necessary to keep the technology out of the hands of criminals.

The case turned on a lawsuit filed by mathematics professor, Daniel Bernstein, who created an encryption program and wanted to export it for academic comment. He filed the suit when he was denied an export licence.

Robert Carolina, lawyer at UK firm, Tarlo Lyons, explained that the ruling is only a marginal victory for people who want to sell and distribute encryption products. "Silicon Valley [firms] want to produce strong encryption software they can export, and this case doesn't do that for them," he said. The development and sale of strong encryption products within the US is not illegal.

Carolina noted that the US Department of Justice could delay the effects of the ruling until a further appeal can be heard, possibly by the Supreme Court. "The US government is absolutely opposed to this ruling," he said. "This is the kind of decision that causes great concern to the security services."