Abstract
This document focuses on what encryption means to the First Amendment. Important in this document is the practical application of the First Amendment to code encryption cases. Cryptography is considered the art of secret writing, which has existed in some form throughout history. Recently, cryptography started to gain more importance among kings. Message can only be received by someone with the provided electronic key. This technology is valuable because it maintains the confidentiality and security of the message during the delivery.
Introduction
Although not all speech activities are protected by the First Amendment, it does give the media constitutional rights for the dissemination of some ideas that are seen as kinds of social interaction. The constitutional question is essential whether a particular use of source code encryption is embedded in such media. It is inadequate to make a distinction between the disclosure of encryption source code in electronic form and publication in written form, as the existing federal rules do. Before encrypting source code, whether it be in paper or electronic form, one must take into account its social environment. Cryptography is seen as a low-cost defense against any invasion of privacy, making it a crucial component in defending society’s right to free expression. The first amendment states that cryptography should be a protected language, as this method is reduced every day by the evolution of technology.
What Encryption Means for First Amendment
Information is protected using secret codes, a technique known as cryptography. Since cryptographers may restrict the amount of information that others can view, this protection is necessary for society’s privacy. The language of cryptography serves as a tool for privacy protection. Symmetric and asymmetric cryptography systems are typically used by consumers. Both systems have the ability to convert a set of legible characters into an unintelligible one. Symmetric cryptography uses a “key” to encode its message. However, the recipient uses the same key to decode the message. Such a key is considered a cipher that is needed for both parties to understand the message. No user will be able to decrypt the message if he does not have the key. In asymmetric cryptography, two keys are derived using a logarithmic function. To create the key, the sender selects a base and an exponent. The key can have both encryption and decryption functions. Many parties are convinced that cryptography cannot be classified as a language and, therefore, should not be protected. Because cryptography is a computer language, courts should not be engaged in limiting linguistic protection.
Despite certain instances of potential criminal use, there is no regulation of encryption in the United States. Therefore, natural persons can sell, manufacture, use, and import encryption technology of any strength. However, there are restrictions on the export of reliable encryption technologies. They are not a new event, but recently, opposition to them has reached its peak. For example, the Arms Export Control Act (AECA) and the Export Administration Act (EAA) regulate the export of encryption to some extent. As early as 1996, the State Department had to promulgate International Traffic in Arms Regulations (ITAR) to implement the AECA. These regulations state that “encryption software has often been designated as “munitions” and listed on the US Munitions List (USIVIL) under the ITAR”. Clinton, in 1996 issued an executive order transferring jurisdiction over non-military encryption products from the State Department to the Commerce Department. With this legislation, the presidential order stipulated that non-military encryption items that would typically be included on the USML would instead be transferred to the Commerce Control List (CCL) under the Department of Commerce’s Export Administration Regulations (EAR).
Products that utilize encryption adhere to the ITAR, are only for military use, and stay on the USML. The Bernstein case and the First Amendment only became prominent in this context.The entire history of the First Amendment and encryption began in 1992 when Bernstein faced restrictions on the export of encryption. He created “Snuffle” as a PhD student at the University of California. The private key for this encryption method was immediately available. In communities all around the world, Bernstein wished to demonstrate the idea inside the confines of academia and science.
As a result, he requested commodity jurisdiction from the State Department to determine if his work qualified for the ITAR.Given that his program fell under the category of munitions, it is regulated by the ITAR, so a paper export license is required. This decision led to controversy and litigation. The court ruled that source code was language for purposes of the First Amendment. During a second hearing, it was determined that several ITAR requirements were in violation of the First Amendment because they placed prior restrictions on communication. Bernstein’s appeal led to the Ninth Circuit decision that is the subject of this case.
Discussing history and rules, the court discussed the First Amendment doctrine of prior restraint. The particular impact of the First Amendment was seen in this case as the suspicions that arise from previous restrictions on language in licensing schemes such as the EAR. As part of the analysis, it was found that the source encryption code is not sufficiently related to the expression.The source code of any sample, however, qualifies as expressive for First Amendment purposes even if it cannot operate a machine. The same expressive function that equations or graphics provide for mathematicians or economists also applies to source code for programmers. However, such provisions of the First Amendment govern only source code, not all software products. Encryption provisions can terminate other fundamental rights beyond the First Amendment.
Since encryption source code might be expressive, functional, or both at the same time, it generally does not fit within the standard First Amendment definitions of the written or spoken word. However, the First Amendment may protect certain types of conduct or “symbolic speech”. A case like this is the one involving O’Brien, which started in 1966 after David Paul O’Brien and three other people set fire to their Selective Service registration documents on the courtroom steps as a show of opposition to the Vietnam War. After his conviction, O’Brien argued that the law under which he was charged was an unconstitutional abridgment of speech. However, he was refused by the Supreme Court to endorse the view that all activities with a specific purpose of expression are “speech” under the First Amendment. There is also a fairly important state interest in regulating the nonspeech element that may justify occasional restrictions on First Amendment freedoms.
Conclusion
The analyzed investigative cases testify to the ambiguous influence of the First Amendment on encryption. Decision in the case of Bernstein helped spark a movement to ensure a long-term victory for proponents of liberal encryption exports. The debate over the permissibility of encryption is quite important because it reveals an intersection of important public interests. Questions of this type force society to consider what interests it values most. Another issue brought up by such problems is how to combine the fundamental rights to privacy and free expression with the crucial concerns of national security, the economy, and foreign policy.
References
- D. McClure, “First Amendment Freedoms and the Encryption Export Battle: Deciphering the Importance of Bernstein v. United States Department of Justice, 176 F.3d 1132 (9th Cir. 1999),” Nebraska Law Review, vol. 79, no. 2, 1999.
- P. Reiman, “Cryptography and the First Amendment: The Right to b e Unheard, 14 J. Marshall J. Computer & Info. L. 325 (1996),” UIC John Marshall Journal of Information Technology & Privacy Law, vol. 14, no. 2. Web.
- A. M. Qadir and N. Varol, “A Review Paper on Cryptography,” 2019 7th International Symposium on Digital Forensics and Security (ISDFS). Web.
- D. Xu and W. Zheng, “Application of Data Encryption Technology in Network Information Security Sharing,” Security and Communication Networks, vol. 2022, pp. 1–6. Web.