The Zimmerman case involves a head-on conflict between the First Amendment right of free expression and the legal doctrine that an idea can be an export. The result of the latter doctrine is that an idea that may be freely expressed within our borders may land one in jail if carried out of the country. Combine this with the impossibility of keeping ideas that are on the Internet from going abroad, and the impossibility of keeping ideas off the Internet, and you have a volatile mix.
Export laws make most sense applied to tangible objects, the kind you can search people's luggage for. Applied to ideas, whether in your head or embodied in speech, export laws rapidly get into trouble. How do you prevent a foreign visitor from leaving the country with ideas about cryptography he gained in a conversation, perhaps at a conference, here?
Years ago, I was startled to learn that a foreign subscriber to Compuserve who downloads a utility program from the IBM PC forum, has just engaged in an export. Depending on the country he comes from and the nature of the software, it may be an illegal export. The federal government has taken a special interest in cryptography software, of the sort written by Phil Zimmerman, and has legally classified it as a "munition", not to be exported anywhere, including friendly countries, without permission.
In the course of a single session surfing the Web, you may find yourself on servers in France, the Netherlands, Britain, South Africa, Israel and Japan, and you may take an idea from, or leave an idea on, any one of them.
It is the nature of the Internet that anything you place on it here will be downloaded abroad, sooner rather than later. On the Internet, there is no difference between local and international any more. It is the same as if all phone calls went over party lines where any listener might be in a foreign country.
According to Phil Zimmerman's attorneys, if he is indicted the government will not claim that he placed Pretty Good Privacy on the Internet; he merely released it as shareware, and someone else put it online. The government will effectively be forced to argue that Phil Zimmerman should not have released PGP because it was foreseeable that someone would place it on the Net and it would go out of the country. The chilling effect of such an argument cannot be overstated.
Of course, the feds need never indict him to deter others from emulating him; the legal fees and the two year ordeal of being investigated are chilling enough.
In copyright law, when idea and expression merge--when there is only one way to implement a particular concept in code, for example--then the copyright monopoly is not available. It was never intended to allow anyone to monopolize an idea for all purposes, because of the ownership of a particular expression of the idea. Similarly, when there is only one channel of communication, simultaneously local and international, an idea cannot be barred from any expression because it might end up being transmitted accross the border.
All ideas that do not originate on the Internet are soon echoed there. (In recent weeks, I have used WebCrawler to search for the Holocaust, guns, Jake Baker, evolution, and the Prisoner's Dilemma, and have found ample material on every topic.) We have reached the point at which the only sure way to avoid the export of an idea is not to utter it. We all lose if this happens. Therefore, our interest in the free expression of ideas must outweigh the government's interest in keeping them within our borders.
I am not arguing that the government has no legitimate interest here. But, if you evaluate its interest in cryptographical software, it becomes clear that this is not a case of the government trying to "bogart" technology that can kill people. Instead, the government's desire is to be able to decode and read other people's communications more effectively. This is the same desire that led this administration to ask all telecommunications manufacturers to install a back door, the Clipper chip, to allow the unscrambling of all communications. What the government really seems afraid of in the Zimmerman case is not Pretty Good Privacy, but privacy itself.
For more information, see a letter from Phil Zimmerman.
