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.

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.

Chronology, with Links to Pleading and Other Materials

• 1992 Bernstein filed request with the U.S. Dept. State.
• 2/21/95. Bernstein filed Complaint in U.S. District Court.
• 12/6/96. District Court Opinion.
• 8/25/97. Expanded District Court Opinion.
• 10/16/97. Government Appeal Brief filed with Court of Appeals.
• 11/10/97. Bernstein's Opposition Brief filed.
• 12/8/97. Oral Argument before Court of Appeals.
• 5/6/99. Court of Appeals rules U.S. encryption export regulations unconstitutional. See also:
  • Appeals Court opinion.
  • TLJ story.
• 9/30. The Court of Appeals granted a rehearing en banc.

Other Resources.

• Websites with information about encryption policy. All of these favor strong encryption.

• Electronic Privacy Information Center. (EPIC). Attorney: Marc Rotenberg. 666 Pennsylvania Ave., SE, Washington, DC, 20003, 202-544-9240.
• Encryption Policy Resource Page.
• Internet Privacy Coalition.
• Center for Democracy and Technology. Attorney: Alan Davidson. 1634 Eye Street NW, Suite 1100, Washington, DC, 20006, 202-637-9800, fax 202-637-0968, webmaster@cdt.org
• Sen. Conrad Burns' Crypto Policy Page. Sen. Burns is the sponsor of S. 377, the "Pro CODE" bill.
• Americans for Computer Privacy. Broad coalition of industry groups, and interest groups, organized to win passage of strong encryption legislation.

• U.S. Court of Appeals, 9th Circuit.
• Myron Bright: Judge, visiting from the 8th Circuit (Fargo, N. Dakota)
• Betty Fletcher: Judge, 9th Circuit Court of Appeals
• Thomas Nelson: Judge, 9th Circuit Court of Appeals