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The First Amendment and the Internet:

Bernstein v. United States Department of Justice, United States Court of Appeals for the Ninth Circuit, No. 97-16686 (May 6, 1999)


In this case, the Ninth Circuit was called upon to decide whether four pages of code written in the language "C" by a doctoral-student cryptographer at Berkeley, setting forth his method for a "zero-delay private-key stream encryptor based upon a one-way hash function," were essentially a form of human-to-human expression entitled to the protection of the First Amendment, or essentially a functional aspect of an encryption machine, subject to restrictive government licensing.



The United States Department of Commerce, through its Export Administration Regulations ("EAR"), sought to require plaintiff Bernstein and other cryptographers to obtain licenses before "exporting" encryption source code, including publishing it on the Internet. In a divided (2-1) decision, the Court held this invalid as a "prior restraint" of constitutionally protected expression. The focus of the dispute was upon the "expressive" nature of "source code": the majority found it clear that "cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs," and it pointed out that "[a] computer, in fact, can make no direct use of source code until it has been translated (‘compiled') into ‘low-level' or ‘machine' language, resulting in computer executable ‘object code.'" The dissent, by contrast, saw source code as essentially functional, as "a method of controlling computers," and viewed the circulation of source-code documents among academics as incidental to this "ultimate purpose."

On June 21, 1999, the Department of Justice filed a motion for reconsideration by the three judge panel or, in the alternative, for a re-hearing before the full Ninth Circuit. The decision seems a likely candidate for further review by the U.S. Supreme Court.

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