Speaking in code.

• Author: Collins, John P., Jr.
• Position: Source code as free speech

Bernstein v. United States Department of State, 922 F. Supp. 1426 (N.D. Cal. 1996); Bernstein v. United States Department of State, 945 F. Supp. 1279 (N.D. Cal. 1996).

For centuries, generals have spoken in code to disguise their communications.(1) Today, computer programmers utilize code as well. Encryption computer programs are written in source code, the text of a computer program written in a high-level computer language.(2) While no one has challenged the right of military leaders to use code, there is a constitutional question as to whether computer programmers have a First Amendment right to speak in cryptographic computer source code. Recently, District Judge Marilyn Hall Patel held in Bernstein v. United States Department of State(3) that cryptographic computer source code is "pure speech" and thus entitled to the full protection of the First amendment.(4)

Much effort has been spent on the administrative regulations concerning the export of encryption technology. Yet very little has been written on whether computer source code is "pure speech" subject to the full protection of the First Amendment, "expressive conduct" to be regulated by the standard set forth in United States v. O'Brien(5) or simply "pure conduct," and therefore outside the protection of the First Amendment. In Bernstein, Judge Patel found that "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."(6) This Case Note will argue that Bernstein improperly categorized cryptographic computer source code as speech, when it is simply pure conduct not entitled to any First Amendment protection.(7)

Bernstein arose out of a dispute between Daniel Bernstein and the State Department over the export of Bernstein's encryption system, "Snuffle 5.0."(8)0 Snuffle 5.0 is the source code for an encryption system written in "C," a high-level computer programming language.(9) When source code is converted into object code--a binary system consisting of a series of 0's and 1's--a computer can encrypt and decrypt information.(10) Nearly unbreakable encoding technology, such as Snuffle 5.0, is becoming more available and affordable, and law enforcement agencies such as the Federal Bureau of Investigation are finding it much more difficult to employ old methods of surveillance. Such methods, including wiretapping, are increasingly obsolete in a digital communication age.

Bernstein submitted Snuffle 5.0--in C language source files--and his academic paper describing the Snuffle system to the Office of Defense Trade Controls (ODTC) to ascertain whether his work needed to be licensed for commercial export.(11) ODTC determined that "Snuffle 5.0 was a defense article under Category XIII of ITAR [International Traffic in Arms Regulations] and subject to licensing by the Department of State prior to export."(12) Thereafter, Bernstein sought declaratory and injunctive relief against enforcement of the ITAR and the Arms Export Control Act (AECA), which regulates the import and export of defense articles.(13) Bernstein argued that "the First Amendment . . . includes the right to speak confidentially, and thus, encryption is deserving of protection because it facilitates private communications."(14) Although the court's holding in Bernstein was not this broad, Judge Patel did hold that source code was speech.(15) Judge Patel had previously held that "`[I]anguage is by definition speech, and the regulation of any language is the regulation of speech'.... This court can find no meaningful difference between computer language, particularly high-level languages . . . and German or French."(16)

The First Amendment prohibits governmental bodies from enacting laws abridging the freedom of speech. The category of speech receiving the most protection is "pure speech." "Pure speech" includes ideas expressed verbally and ideas communicated through the written word.(17) For example, the Court of Appeals for the Ninth Circuit recently stated that the decision to "speak in a language other than English [implicates] pure speech concerns .... Speech in any language is still speech, and the decision to speak in another language is a decision involving speech alone."(18) However, for expression to be termed pure speech, the form of its expression must be relatively pure. For example, courts have held that picketing is "not an instance of `pure speech' because it usually involves conduct of some sort and may not include verbal...