2 Va. J.L. & Tech. 1 (1997)

handle is hein.journals/vjolt2 and id is 1 raw text is: 2 Va. J.L. & Tech. 1 (Fall 1997) <http://vjolt.student.virginia.edu>
1522-1687 / P 1997 Virginia Journal of Law and Technology Association
VIRGINIA JOURNAL of LAW and TECHNOLOGY
UNIVERSITY OF VIRGINIA               FALL 1997                   2 VA. J.L. & TECH. I
Encryption and the First Amendment [*j
by Robert M. O'Neil **1
1. Though cryptography has ancient roots, the emergence of First Amendment challenges to
government control of encryption is a very recent phenomenon. Yet the several cases now in the
courts, and others likely to follow, promise to make this one of the liveliest arenas for free
expression. Though it is far too early to venture confident predictions, it would be surprising if the
Supreme Court does not pass upon encryption issues sometime in the next few years.
2. The constitutional issues emerge with a clarity and simplicity that contrasts sharply with the
inherent complexity of the technology. The basic issue is a profoundly important one both for free
speech and for electronic communication: whether the United States Government may require
export licenses of persons who disseminate encryption programs or publish, either electronically
or in print, materials discussing encryption where non-U.S. citizens may access those materials.
3. Not surprisingly, federal courts differ in the resolution of this issue. A district judge in San
Francisco has twice held encryption software to be expression fully protected by the First
Amendment.j1J Her decision is currently under review by the Court of Appeals for the Ninth
Circuit.L2J Meanwhile, a judge in Washington, D.C. took a markedly different view of a
commercial publisher who sought, but was denied, a license for foreign distribution of encryption
programs.[3J He found the export controls virtually immune from constitutional challenge, in
deference to the foreign affairs powers of the President.141 With respect to encryption programs
themselves, he recognized the presence of an expressive element, but appraised the regulatory
scheme under a much lower level of scrutiny than did the San Francisco judge.J5j
4. A third case pending in federal court in Cleveland promises to be the most interesting and difficult
of the encryption cases.161 The plaintiff, a law professor who teaches computer law has felt
compelled to bar foreign students and visiting international scholars from his classes, lest the mere
discussion of encryption in their presence be deemed an unlicensed export of regulated
technology.[7J
5. While the facts of the three cases differ substantially, they share common themes. The customary
level of judicial deference to executive controls over the export of sensitive material

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