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For many years, a battle has raged over export restrictions on strong encryption products. Encryption ensures confidential and secure communications among individuals, and the Commerce Department and the State Department have long restricted its export because of national security concerns. Industry and privacy groups have fought against the restrictions for various reasons, ranging from the desire to sell encryption software in new markets to preventing government from accessing personal communications between individuals. Daniel Bernstein, a computer science graduate student, challenged these restrictions in 1996, placing himself in the center of this ongoing battle. In 1999, the Ninth Circuit Court of Appeals held in Bernstein's favor, saying that such restrictions constituted a violation of the First Amendment. This ruling changed the dynamic of the encryption export debate, and it has helped propel to victory those who oppose regulations on the technology.

The first part of this casenote provides background information necessary to understand the history and nature of encryption technology and the regulations that restrict its export. The second part provides a detailed analysis of Bernstein v. United States Department of Justice. The casenote ends with an examination of the competing views in the encryption export battle and a discussion of the First Amendment's influential role in the overall conflict.

Publication Citation

79 Neb. L. Rev. 465 (2000).