"These regulations are preserving the ability of the government to get in the way of the export and the use of strong cryptography," said ACLU Associate Director Barry Steinhardt. "They've been unwilling to simply deregulate, I think because of pressure from the NSA and the FBI who are unwilling to give up the ghost."
With the new rules, scheduled to go into effect Friday, software makers have unprecedented freedom to offer strong encryption software overseas. But civil libertarians, while hailing the new regulations as a major advance, aren't ready to celebrate.
'There are still rules'
"They have substantially liberalized export rules, but there are still export rules," Sobel said.
The old export rules were ruled unconstitutional by a federal appeals court in the case of mathematician Daniel J. Bernstein, who sought the right to publish his cryptography research on the Internet despite it's international reach. The case is ongoing, and Bernstein's lawyer has until Feb. 4 to brief the 9th Circuit Court of Appeals on how the new regulations affect the arguments.
"On one hand the government has really done some good things here, it looks like a lot of cryptography is going to go out and that's a good thing," said plaintiff attorney Cindy Cohn. "But I don't think there's anything about the subject matter of encryption that justifies treating it differently than any other software, and there's no justification for treating things in electronic media differently that any other media."
"It's a step forward," acknowledged ACLU's Steinhardt, "But the regulations create a maze that only the well heeled with a battery of lawyers are going to be able to navigate."
Fundamentals not addressed
But to Schneier, who's book, "Applied Cryptography," was exportable in paper form while restricted on disk, the new rules have a more immediate impact. "It now means I can sell my source code disks to anybody," Schneier said.
"The problem is the government still has the power to review, and presumably deny, the distribution of information relating to encryption," said David Sobel, general counsel at the Electronic Privacy Information Center.
Noted cryptographer Bruce Schneier, president of Counterpane Systems, agrees. "It's certainly a good thing -- the ability to export mass market software is a good deal," said Schneier. "But it doesn't address the fundamental Constitutional issues, so that still has to be dealt with ... and it's too complicated for anybody except lawyers who know the field and that's really bad."
