Bernstein v. U.S. Department of State, et al.

Summary provided by the Electronic Frontier Foundation, October 10, 1997

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.

Court's 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 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.

Current Status:

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.