Bernstein v. U.S. Department of State, et al.
Summary provided by the Electronic Frontier Foundation, October 10,
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") Usenet 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 was heard by Judge Marilyn Hall Patel.
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 crypto 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 probably violates the First Amendment under Reno v.
ACLU (_U.S._ (1997)), which held that Internet speech deserves the same
protections as printed speech.
The government was granted an emergency stay from the 9th Circuit Court of
Appeals, prohibiting Bernstein and others from publishing any secure
encryption until after it has heard the government's appeal. The court
will hold hearings and consider the appeal the week of December 8, 1997.