Rush Limbaugh Criticizes DOJ on Encryption Exports

(June 23, 1999) Conservative talk radio host Rush Limbaugh criticized the Clinton administration decision to seek an en banc rehearing in the Bernstein encryption case on his daily show on Tuesday, June 22. He said that it was inconsistent with the administration's transfer of satellite technology to China. Moreover, he called the administration's encryption policy "a day late and a dollar short."

Limbaugh said that the Department of Justice "didn't bat an eyelash" when the administration allowed the export of national security sensitive satellite technology to China. "Now they are all upset over this encryption technology, which is a day late and a dollar short, and just more inconsistency from this administration."

On Monday, June 21, the Department of Justice filed a petition for rehearing in the Bernstein case. The case involves a constitutional challenge to the administration policy restraining the export of encryption products. The petition states that the "President of the United States has determined that the uncontrolled export of encryption products would compromise this country's foreign intelligence gathering capabilities and jeopardize important national security and foreign policy interests. The President therefore has directed the Department of Commerce to regulate the export of encryption products under the Export Administration Regulations".

The Plaintiff in the case is Daniel Bernstein a professor of mathematics at the University of Chicago. He filed suit in February of 1995 alleging that the U.S. government's prohibition of strong encryption export, based upon the Arms Export Control Act, violates the First Amendment, by constituting a prior restraint on freedom of speech. On August 25, 1997, U.S. District Court Judge Marilyn Patel granted summary judgment for Bernstein. And, on May 6, 1999, a three judge panel of the Ninth Circuit Court of Appeals affirmed. The petition referred to by Rush Limbaugh asks for the 9th Circuit en banc to review the three judge panel's decision. If denied, the government could file a petition for writ of certiorari with the U.S. Supreme Court.

Legislation that would liberalize encryption export restraints, and guarantee Americans the right to use any encryption products, is pending in both the House and Senate.

The House bill, HR 850, the Security and Freedom through Encryption (SAFE) Act, is cosponsored by over half of the members of the House. Support for the bill is bipartisan. Its cosponsors include some of the leading liberal members of the House, including Rep. David Bonior (D-MI), Rep. Barney Frank (D-MA), and Rep. Maxine Waters (D-CA). The bill is also supported by some of the most conservative members, such as Rep. Dick Armey (R-TX), Rep. Tom DeLay (R-TX), and Rep. Dana Rohrabacher (R-CA).

However, while support for pro-encryption legislation is broad, they issue is rarely discussed in the popular media. Tech Law Journal tried unsuccessfully to reach Mr. Limbaugh to learn if this is the first time he has spoken on the encryption issue.

Rush Limbaugh

This is what he had to say. "Now, what is interesting about this to me is that the Justice Department says that it disagrees with the 9th Circuit on this ruling. They want them to reconsider the ruling that would loosen export control law in encryption technology."

"Now the Justice Department didn't bat an eyelash when the Clinton administration transferred export technology and export licensing for all of these satellite companies from the State Department to Commerce. That is what led to a lot of the technology that the Chinese now have ending up in their hands. They were simply allowed to buy it."

"State Department used to be in charge of who was allowed to export what, and to where. And the Clinton administration transferred that to the Commerce that was then headed up by Ron Brown. Justice Department didn't bat an eye then."

Limbaugh concluded, "Now they are all upset over this encryption technology, which is a day late and a dollar short, and just more inconsistency from this administration."