Resource: Bernstein v. Department of Justice

By: Global Freedom of Expression

May 6, 1999

Columbia University

The U.S. Court of Appeals for the Ninth Circuit determined that regulatory restrictions on an individual’s ability to publish encryption source code was a violation of the First Amendment. Daniel Bernstein developed encryption software and wanted to publish an explanatory research paper and its source code. However, the Export Administration Regulations (EAR) prevented him from freely publishing the source code, which led Bernstein to argue that the regulation infringed on his First Amendment rights. The court reasoned that programming language is speech and is thus protected under the First Amendment. However, the court stressed that not all software is expression.