Bernstein v. Dept. of Justice

Daniel Bernstein v. U.S. Department of Justice. U.S. District Court for the Northern District of California, Case Number C-95-0582, U.S. Court of Appeals, 9th Circuit, 97-16686.

Nature of the Case. This is a policy oriented federal lawsuit, now pending the federal courts, brought by a mathematician/cryptographer, and backed by a number of privacy groups, challenging the constitutionality of encryption export restraints.

This page was last updated on October 1, 1999.

Plaintiff. Daniel Bernstein, was a Ph.D. candidate in mathematics / cryptography at the time the suit was filed, and is now a professor at the University of Chicago. See, Bernstein's website. Attorney: Cindy Cohn, McGlashan & Sarrail, 177 Bovet Rd, 6th Floor, San Mateo, AC, 94402, 650-341-2585, fax 650-341-1395.

Defendant. United States. Attorneys: Scott McIntosh and Douglas Letter, Appellate Staff, Civil Division, U.S. Department of Justice.

Facts. Bernstein writes papers and software pertaining to encryption. He produced a zero-delay private-key encryption system "Snuffle".  The Arms Export Control Act (AECA) authorizes the President to "control the ... the export of defense articles and defense services." Pursuant to this Act the State Dept. promulgated and administered the International Trafficking in Arms Regulations (ITAR). The Dept. place encryption products on the ITAR "munitions list". In 1992 Bernstein filed a request with the State Department to determine whether the Snuffle source code or the related information was controlled by the ITAR. The State Dept. asserted that the Snuffle source code, the scientific paper, and all other Snuffle technical information, were controlled by the ITAR, and required that Bernstein get approval (in the form of a license) to the export of source code or related information. Bernstein sued the State Dept. (The State Dept. is no longer the agency handling ITAR matters, but this does not affect this lawsuit.)

Issues. Whether the U.S. government's prohibition of strong encryption export, based upon 22 USC 2778 (Arms Export Control Act - AECA), and 22 CFR 120-130 (International Trafficking in Arms Regulations - ITAR) (now 15 CFR 730-74), violates the First Amendment, by constituting a prior restraint on freedom of speech.  Also at issue is whether these regulations are unconstitutionally vague.

Holding. The U.S. District Court Judge Marilyn Hall Patel held that the International Trafficking in Arms Regulations prohibiting export of strong encryption are unconstitutionally vague and constitute an impermissible prior restraint of speech under the 1st Amendment. Judge Petel also rejected the government's distinction between electronic and paper publication of encryption code, and also struck down a federal encryption licensing program that provided inadequate safeguards against prior restraint on free speech. Bernstein v. U.S. Dept. State, 974 F. Supp. 1288 (N.D.Cal. 1997). (The case is now under appeal.) On May 6, 1999, the Ninth Circuit Court of Appeals affirmed.

Status. On September 30, 1999 the Appeals Court granted an en banc rehearing. The order stated:

Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3.  The three-judge panel opinion, Bernstein v. U.S. Dept. of Justice, 176 F.3d 1132 (9th Cir. 1999), is withdrawn.

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