PGP Case

For three years, I represented Philip Zimmermann in a federal investigation concerning the export of a munition—a software program. Mr. Zimmermann wrote a program called PGP (Pretty Good Privacy) that permits people to encrypt their electronic communications in such a way that only the intended recipient can decrypt them. While no reputable cryptographer will ever say that his code can’t be cracked, it is very likely that messages properly encrypted with PGP are beyond the reach of all the world’s governmental and corporate code-breaking resources. Mr. Zimmermann made PGP available to US citizens in June of 1991. While he took steps to prevent export, the program nevertheless found its way overseas, and it became the de facto worldwide standard for email encryption.

In February 1993, two customs agents came from San Jose to visit with Mr. Zimmermann. The agents denied that Mr. Zimmermann was the target of any investigation and even that they were conducting a criminal investigation. Even so, this was the beginning of a process that could have led to a federal indictment for the illegal export of a munition without a license. (Cryptographic software was indeed defined as a munition despite the fact that it had been readily available worldwide for years.) The statute provided for a ten-year sentence, and the sentencing guidelines required a 41- to 51-month sentence. Mr. Zimmermann had a wife and two children. He did not agree with the notion that the government should make new law in its criminal courtrooms.

The case raised serious privacy and other policy issues. Why is it a felony to export something in electronic form when it is perfectly legal to export that same thing in printed form? Why should cryptographic software be export-controlled at all, particularly when it’s been available overseas for years and when export controls hamstring American industry in the global marketplace? Is it an “export” to post something on a BBS? On a US Internet site? Will American citizens be permitted to use any cryptography to which the government doesn’t have the key? (Which is another way of asking whether Americans will retain the right to have private conversations.) Mr. Zimmermann’s case made the front page of publications from The Wall Street Journal to the Boulder Daily Camera, and it was featured in Newsweek, U.S. News & World Report, Time, and dozens of publications around the world. It generated substantial contributions to the Zimmermann Legal Defense Fund, many of which contributions were made over the Internet via email encrypted with PGP.

Non-Prosecution Correspondence