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Bernstein Cryptography Case Dismissed
notime writes "According to a post to export@list.cr.yp.to, djb's crypto case has been dismissed without deciding the constitutionality of the current regulations since the DOJ said the
government would not enforce several portions of the regulations. Bernstein said in a statement that he hopes the government keeps its promise - 'But if they change their mind and start harassing Internet-security researchers, I'll be back.'" EFF has a document archive for this on-again, off-again case against U.S. Government regulation of cryptography exports.
Subject: [IP] The Bernstein Cryptography Case Is Dismissed
From: Dave Farber To: ip@v2.listbox.com Date: Wed, 15 Oct 2003 17:41:19 -0400 Delivered-To: dfarber+@ux13.sp.cs.cmu.edu Date: Wed, 15 Oct 2003 17:19:29 -0400 From: "Peter D. Junger" Subject: The Bernstein Cryptography Case Is Dismissed To: Dave Farber
For IP if you consider it suitable.
This inconclusive ending of the Bernstein case is a consequence of the government's policy in cases where there are first amendment challenges to restrictions on the publication of software to claim that they have no intention of enforcing the law as it is written and thus getting the cases dismissed as moot.
The end result is that, though Bernstein had originally won in both the District Court and the 9th Circuit and I lost my later-filed case involving much the same issues---Junger v. Daley---in the federal District Court for the Northern District of Ohio, it is the 6th Circuit Court of Appeal's decision reversing the District Court's decision in Junger v. Daley that is the leading case holding that computer programs are speech that is protected by the First Amendment. In the Bernstein case, when the government amended the regulations forbidding the publication of computer programs, the 9th Circuit Court of Appeals withdrew its earlier opinion in Bernstein's favor and remanded the case to the district court, where the government claimed that they would not enforce the restrictions on cryptography against Dan Bernstein. In my case, on the other hand, the 6th Circuit Court of Appeals reversed the District Court's holding that the First Amendment does protect those who would publish software and then remanded the case to the District Court for further proceedings. At that point, rather than risking our victory in the 6th Circuit, we settled my case, even though the new regulations were---and are---constitutionally questionable.
Although my case is now the leading case holding that publishing software is protected by the First Amendment, I do not believe that we would have had our success without the efforts of Dan Bernstein and his lawyers from the Electronic Freedom Foundation.
------- Forwarded Message
From: "D. J. Bernstein" To: export@list.cr.yp.to Subject: Crypto Case On Indefinite Hold
PRESS RELEASE
Contact: Daniel J. Bernstein, press-20031015@box.cr.yp.to
CRYPTO CASE ON INDEFINITE HOLD
Chicago, 15 October 2003 - The longest-running court case against the government's encryption regulations has come to an end, for now.
The regulations were challenged by Daniel J. Bernstein, a professor of mathematics, statistics, and computer science at the University of Illinois at Chicago. Bernstein filed his lawsuit in February 1995 and won four court decisions against the constitutionality of the government's previous regulations.
In an October 2002 court hearing on the current encryption regulations, Department of Justice attorney Tony Coppolino told the court that the government would not enforce several portions of the regulations.
``I can assure you that the regulatory authority does not want [researchers who are collaborating at conferences] sending us an e-mail every time they change something in an algorithm,'' Coppolino told the court. Coppolino also said that commmercial book publishers and assembly-language publishers did not need to obtain licenses.
As observers predicted after the hearing, Chief Judge Marilyn Hall Patel of the United States District Court for the Northern District of California relied on the government's promises and dismissed Bernstein's case without deciding the constitutionality of the current regulations.
``If and when there is a concrete threat of enforcement against Bernstein for a specific activity, Bernstein may return for judicial resolution of that dispute,'' Patel wrote, after citing Coppolino's ``repeated assurances that Bernstein is not prohibited from engaging in his activities.''
``I hope the government sticks to its promises and leaves me alone,'' Bernstein said in a statement today acknowledging Patel's decision. ``But if they change their mind and start harassing Internet-security researchers, I'll be back.''
The case archive is now http://export.cr.yp.to. That archive has about 200 of the case documents; the old EFF archive has only about 100.
He doesn't care about exporting... He cares about being able to freely discuss crypto concepts with his peers and students. Some of those peers and students may just happen to be overseas. Even if not, he was threatened with enforcement actions for having his thoughts/ideas available on an unrestricted web site available to the Internet at large. This is a free speech issue. (Words are NOT munitions. Programs are written words. Programs are not munitions.)
DMCA targets instructions with certain effects---i.e., instructions with certain content. Unfortunately, EFF failed to emphasize this crucial point in their briefs. The Second Circuit started from the (ludicrous) idea that DMCA wasn't based on content, and easily concluded that DMCA was constitutional.
This issue didn't matter for my case because ITAR was a ``prior restraint'' law. As an extreme example, imagine a law that says ``Before publishing any book, you must send the book to the mayor for approval.'' The law is, on its face, content-neutral, but it gives the mayor power to make decisions based on content, so it's unconstitutional. This is an issue of procedures: basically, the only government officials permitted to evaluate content on a case-by-case basis are judges.
The only way the government could have escaped from this was by pushing the (ludicrous) idea that publishing instructions isn't an example of communication. They tried, and failed.