Fun_People Archive
5 Dec
The Bernstein Case

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From: Peter Langston <psl>
Date: Fri,  5 Dec 97 11:13:25 -0800
To: Fun_People
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Subject: The Bernstein Case

Excerpted-from: EFFector 10.11
EFFector        Vol. 10, No. 11        Dec. 4, 1997
A Publication of the Electronic Frontier Foundation        ISSN 1062-9424

   See for more information
   on current EFF activities and online activism alerts! *

Subject: Bernstein First Amendment Crypto Case Proceeds to Circuit Court

* Press Release, Dec. 4, 1997

                      Electronic Frontier Foundation

             Historic Ninth Circuit Court of Appeals hearing on
        Bernstein case issues of encryption, free speech and privacy
                                December 8

On Monday, December 8, around 10:30AM, the US Government will be before
the Ninth Circuit Court of Appeals (Courtroom 1, 95 Seventh Street, San
Francisco) arguing that anyone who wants to publish a computer program
containing encryption has to first ask permission from government
officials whose decision cannot be appealed in any court.  The case is
Bernstein v. US Dept.  of Commerce.

This appellate hearing is an attempt by the US Government to overcome a
resounding First Amendment, privacy and online commerce victory secured by
mathematician Daniel Bernstein who brought suit claiming that governmental
restrictions on the distribution of encryption software are impermissible.

On August 25, 1997, Federal District Court Judge Marilyn Hall Patel ruled,
"the encryption regulations [of the US Government] are an unconstitutional
prior restraint in violation of the First Amendment" and thereby found
encryption export controls to be illegal.

The government appealed and barely three months later an expedited appeal
will be heard on Monday, December 8 at roughly 10:30AM in the Ninth
Circuit Court of Appeals, in San Francisco. This Appellate hearing may be
the final stop before the US Supreme Court.

"The Bernstein case on encryption, free speech and communication privacy is
critical to both businesses and individuals because the Clinton
Administration has been using export controls on encryption to influence
domestic privacy policy," observed Lori Fena, Electronic Frontier
Foundation (EFF) Executive Director. "US software companies that agree to
build 'key recovery' into their products are exempt from most export
restrictions, but 'key recovery' gives the US government untraceable and
secret access to users' private information and conversations."


Immediately following the Ninth Circuit hearing, the EFF will convene a
panel of the Bernstein legal team lawyers and first amendment professors
from Bay area law schools to comment on the day's proceedings.  The panel
discussion will take place at the Best Western motel, 200 feet from the
Court building, 121 Seventh Street, SF. (between Mission and Howard)

"The right to create, use and publish encryption comes from our basic civil
rights of free speech, freedom of the press, freedom from arbitrary search,
due process of law, and privacy," Fena indicated.  "Our ability to use
the Internet for secure communication of our most personal, private matters
demands no less."

* Contact information

Ninth Circuit information: calendar clerk: 415-556-9780

The Electronic Frontier Foundation is is a nonprofit, civil liberties
organization working in the public interest to protect privacy, free
expression and access to online resources and information.  EFF is a
primary sponsor of the Bernstein case.  EFF helped to find Bernstein pro
bono counsel, is a member of the legal team and helped collect members of
the academic and computer industry community to support the case.

Bernstein case legal documents are available at

EFF and Legal team contacts:

Cindy Cohen, McGlashan and Sarrail
head of the Bernstein legal team

Shari Steele, EFF staff attorney

John Gilmore, Founding EFF board Member

[End press release]

* Note to EFF Members and Bernstein Supporters in the SF Bay Area

If you will be in the area, you may wish to attend the hearing, as this
will help show the court that this is an important case with a lot of
public attention.  Business attire would be appropriate.  The court
building will have metal dectors at the entry point, so sensitive devices
that should not be subjected to a metal-detector should be left at home

* Background

                 Backgrounder on EFF-Supported Challenge
                  to the Export Controls on Encryption,
               Bernstein v. U.S. Department of State, et al.

The Electronic Frontier Foundation (EFF) believes that encryption is a
necessary technological solution to protecting privacy and keeping
computer networks secure.  However, current U.S. export controls severely
restrict the dissemination of this technology.  Based on old Cold War
fears, encryption is highly regulated by the U.S. Departments of State and
Commerce, which refuse to license any secure encryption product for export
unless it utilizes key recovery, a government code word for giving
third-parties not originally intended to receive an electronic message the
ability to quickly and secretly decrypt the message, or translate it into
readable, unscrambled text.

The results are debilitating for the software industry and communications,
like the Internet, telephones, and cell phones.  Because computer networks
like the Internet are international in scope, strong encryption cannot be
used to secure passwords, software products, and private messages, leaving
them virtually unprotected from those who would gain unauthorized access
or make unauthorized copies.

As dangerous as the current export limitations are to companies and
individuals, mounting a challenge to this antiquated law has been
difficult.  The government has shielded itself from judicial scrutiny
through its power to control national security.  The export laws attempt
to preclude court challenges.

Facts of the Bernstein Case:

Daniel J. Bernstein was a Ph.D. student in Mathematics at the University
of California at Berkeley.  He wrote an encryption program, along with a
document describing the program, that he wanted to post on the Internet
for discussion and scrutiny by other cryptographers.  After asking the
State Department, Mr. Bernstein was informed that he would need a license
to be an arms dealer before he could post his encryption algorithm and
descriptive document to the sci.crypt (which stands for "science of
cryptography") newsgroup, and that if he applied for a license his request
would be denied because his algorithm was too secure.  In an EFF-sponsored
case, Mr. Bernstein sued several government agencies, including the
Commerce Department, which now oversees exportation of non-military
encryption products, claiming that the export control laws act as a prior
restraint on his constitutionally protected speech and are too overbroad
to serve their purpose of protecting national security.  This case was
filed in the federal district court for the Northern District of
California (and later amended to address attempts by the government to
shuffle encryption jurisidiction in a "shell game" intended to make the
case moot.)  The case was heard by District Judge Marilyn Hall Patel.

Court Rulings:

Judge Patel has made several rulings in this case.  The first ruling
(Bernstein I, 922 F. Supp. 1426 (N.D. Cal. 1996)) was on April 15, 1996,
and was in response to the government's motion to dismiss the case for
lack of jurisdiction.  The court held that source code was speech
protected by the First Amendment, and the court therefore had
jurisdiction in the case.

The second ruling (Bernstein II, 945 F. Supp. 1279 (N.D. Cal. 1996)) was
on December 6, 1996, and was in response to Bernstein's motion for an
injunction so he could post materials to a Web site for the students in
his Spring 1997 cryptography course.  The court held that the export
control laws on encryption promulgated by the State Department were an
unconstitutional prior restraint on speech and that Bernstein could
publish for his class while the rest of the case was being decided.

The final ruling (Bernstein III) was on August 25, 1997, and held that
the restrictions on the publication on encryption were an
unconstitutional prior restraint on speech even as written under the new
Commerce Department regulations.  The court granted an injunction to
Professor Bernstein, forbidding the government from prosecuting him for
exporting Snuffle (the encryption program he wrote) or any other
encryption programs.  The court specifically stated that it could grant
a nationwide injunction against the enforcement of any encryption
restrictions against anyone.  However, the court declined to do this,
stating that it expected an appeal and wanted the most narrow holding it
could devise.

The court also held that allowing printed source code to be exported
undermined the government's claim that this export control scheme protects
any national security interest.  The court thought that distinguishing
print from electronic expression probably violates the First Amendment
under Reno v. ACLU (_U.S._ (1997), the "CDA case"), which held that
Internet speech deserves the same protections as printed speech.

Status Since the Trial Court Decisions:

In response to an emergency motion from the government on August 28,
1997, Judge Patel granted the government a partial stay and ruled that
most of the injunction of Bernstein III would be put on hold until the
9th Circuit Court of Appeals had a chance to review Professor
Bernstein's case.  However, part of the injunction remained in effect.
After September 8, 1997, Professor Bernstein would be free to publish
his Snuffle 5.0 software on the Internet without fear of prosecution.

On September 10, 1997, the government appealed the partial stay, arguing
to the 9th Circuit Court of Appeals that it would be so injurious to the
national security for Professor Bernstein to publish his Snuffle 5.0
software on the Internet, a complete stay of Judge Patel's injunction
was needed.  The government also proposed that the entire appeal be done
on an expedited basis.  On September 24, 1997, the 9th Circuit Court of
Appeals granted the government's stay and request for expedited appeal.
The court set a hearing date of December 8, 1997.

Current Status

The 9th Circuit Court of Appeals will be hearing oral arguments from
both sides on December 8, 1997.  The main issue before the Court is
whether the export control laws and regulations violate the First
Amendment.  The Government is arguing that if their *intent* is to
regulate something other than publication, they only need to show that
the rules are "narrowly tailored" to serve a "substantial government
interest."  The government argues that if it meets that test, it does
not have to worry about whether the regulations are a "prior restraint"
on publication.  Bernstein is arguing that what matters is whether the
government *actually* regulates publication (no matter what its supposed
"intent"), and that the government's export control regime is an
unconstitutional prior restraint on Bernstein's speech.

What this means is this:  Prior restraint on free speech is presumed
unconstitutional.  The government is arguing that they are not regulating
publication, only use.  If the government were regulating publication,
then the stricter prior restraints doctrine would apply.  If the
government were merely regulating use, then the reduced consititutional
protections would apply where the regulations simply must be "narrowly
tailored" and have a "substantial government interest".

Bernstein argues that encryption publication and use are one and the same
and therefore the regulations are an unconstitutional prior restraint on
free speech.


 Subject: Quote of the Day

"We accept the risk that words and ideas have wings we cannot clip and
which carry them we know not where."
  - US Ninth Circuit Court of Appeals, in free speech case Winter v.
    G.P. Putnam's Sons (938 F.2d at 1035), 1991.

Find yourself wondering if your privacy and freedom of speech are safe when
bills to censor the Internet are swimming about in a sea of surveillance
legislation and anti-terrorism hysteria?  Worried that in the rush to make
us secure from ourselves that our government representatives may deprive us
of our essential civil liberties? Concerned that legislative efforts
nominally to "protect children" will actually censor all communications down
to only content suitable for the playground?  Alarmed by commercial and
religious organizations abusing the judicial and legislative processes to
stifle satire, dissent and criticism?

Join EFF! (or send an inquiry to

You *know* privacy, freedom of speech and ability to make your voice heard
in government are important. You have probably participated in our online
campaigns and forums.  Have you become a member of EFF yet?  The best way
to protect your online rights is to be fully informed and to make your
opinions heard.  EFF members are informed and are making a difference.
Join EFF today!

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