WASHINGTON-The Department of Justice has reminded the computer industry that, notwithstanding a recent appeals court ruling, restrictions on the export of encryption technology still are in place.
“The regulations controlling the export of encryption products currently remain in full effect … If the government asks the Ninth Circuit to rehear the appeal … the stays of the injunction remain in effect,” said the Justice Department in a statement.
Encryption technology is used to scramble computer data. The computer industry has been trying for years to get a relaxation of export controls on encryption technology, but has met resistance from the FBI and National Security Agency.
Earlier this month, the U.S. Court of Appeals for the Ninth Circuit ruled restrictions on encryption violate the First Amendment.
DOJ indicated it probably would appeal the decision either by asking for the full panel to hear the case or by taking it to the Supreme Court.
The debate over controls on encryption products has been waging since 1996 when the Clinton administration moved encryption export control policy from the jurisdiction of the Department of State to the Commerce Department. This move resulted in an export control policy that said U.S. computer companies could not export encryption products with bit strengths greater than 56 bits, with restrictions, and 40 bits without restrictions. These bit strengths are considered weak by the computer industry, which has developed products with bit strengths of at least 128 bits.
There are bills in both the House and Senate that would relax the export controls. Some major differences between the two bills include the key bits that can be exported and the review process. The Senate bill caps the bit strength at 64 bits. There is not a cap in the House bill due to a generally-available test. The House bill provides for a 15-day review by the Secretary of Commerce while the Senate bill has an elaborate process with review by an Encryption Export Advisory Board, then the Commerce Secretary must respond within 15 days.
