DOJ Files Petition for Rehearing En Banc in the Bernstein Encryption Case

(June 22, 1999) The U.S. Department of Justice filed a petition on Monday, June 21, with the 9th Circuit Court of Appeals requesting an en banc rehearing of the Court's May 6 decision holding that  encryption export restraints constitute a prior restraint of free speech.

The Plaintiff, Daniel Bernstein, filed suit in February of 1995 alleging that the U.S. government's prohibition of strong encryption export, based upon the Arms Export Control Act, violates the First Amendment, by constituting a prior restraint on freedom of speech. On August 25, 1997, U.S. District Court Judge Marilyn Patel granted summary judgment for Bernstein.

The U.S. government appealed to the Ninth Circuit Court of Appeals. A three judge appeals court panel affirmed in a 2 to 1 opinion on May 6, 1999. The petition filed on Monday asks for the 9th Circuit en banc to review the three judge panel's decision. If denied, the government could file a petition for writ of certiorari with the U.S. Supreme Court.

The petition does not raise any new issues. Rather, it restates the government's prior arguments that Judge Patel incorrectly decided the case. It also emphasizes that the May 6 affirmation was by a divided panel, and that one judge was a District Court judge, rather than an Appeals Court judge.

The petition states that the "President of the United States has determined that the uncontrolled export of encryption products would compromise this country's foreign intelligence gathering capabilities and jeopardize important national security and foreign policy interests. The President therefore has directed the Department of Commerce to regulate the export of encryption products under the Export Administration Regulations (EAR)." (parentheses in original)

"In this case, a divided panel of this Court has now reached the extraordinary conclusion that the encryption export provisions of the EAR are invalid on their face and in their entirety, thereby opening the door to the unrestricted export of encryption products. In so doing, the panel majority has overridden an important Presidential decision regarding national security and foreign policy. If left in place, the panel's decision will gravely compromise the ability of the United States to control the export of encryption products to potentially hostile foreign parties."

The petition argues two main points. First, it argues that encryption exports restraints do not consitute a prior restraint of speech. Second, it argues in the alternative that even if they do, the court should only address encryption source code, and leave the regulation of other encryption products untouched.

The petition states that "Even if the export controls on encryption source code were facially unconstitutional, which they are not, the panel majority erred by ruling that the export controls on encryption source code are not severable from those applicable to other encryption products. The severability ruling results in a decision that goes far beyond Bernstein's software, to types of encryption products that Bernstein himself has never sought to export and lacks standing to litigate."

"The panel therefore should have severed "source code" from the definition of "encryption software," leaving the remainder of the definition -- and the EAR's export controls on products other than encryption source code -- undisturbed," the petition concluded.

Douglas Letter and Scott McIntosh, appellate lawyers in the Washington headquarters of the Justice Department, were the primary authors of the petition.

The court's consideration of these issues could be rendered partially moot if legislation now pending in the Congress is passed. HR 850, the Security and Freedom through Encryption (SAFE) Act, is working its way through the House. A related bill, S 798 , the PROTECT Act, is pending in the Senate. Each bill was approved by the respective Commerce Committees on Wednesday, June 23.