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.

Comments

Thank You to the EFF

[johny_qst]

I just want to say thanks for the tireless efforts of the EFF in this case. In so many instances they are the only real force to bring intelligent discussion to the judicial system about technology and it's uses. If you don't yet contribute to the EFF coffers, perhaps this should convince you!

Re:Unenforced Laws

[aridhol]

Ah, yes. Dumb, unenforced laws. Always good for a laugh.

Re:Unenforced Laws

[Tackhead]

> Is it just me, or does anyone else wish that the government was forced to enforce its own laws, instead of picking and choosing when and where to do so? There are a truly ridiculous number of laws on the books that are rarely enforced, until the prosecutors feel they have a "good" case to drop the hammer on some poor schmuck.
>
> The public doesn't care about laws that aren't enforced, so most people break the law every day blissfully unaware. It would seem that laws that nobody cares about need to be done away with, instead of criminalizing large portions of the population.

"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens' What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."

- Ayn Rand, Atlas Shrugged, 1957.

Enforcement is not an option. There are so many laws on the books that the system would collapse under the weight of its own bureaucracy if even a tenth of them were enforced.

Repeal is not an option. Dropping the laws would be nothing short of suicidal in terms of maintaining control over a fundamentally lawless population.

The only solution that makes sense is the present one. Your freedom comes with responsibility. Use it wisely.

link to pdf of ruling on court site

[Hobart]

http://www.cand.uscourts.gov/cand/judges.nsf/768f3 ad651edbe0d88256d480060b72e/271f391e02f25e9588256d 7100678221?OpenDocument

[snipped from the end]

Therefore, although Bernstein has demonstrated a concrete plan, he has not been subject to a specific threat of enforcement and cannot point to a history of enforcement that supports his claim of injury.

As in Thomas, the threat of prosecution is "theoretically possible" but "not reasonable or imminent." Id.

Even if Bernstein's injury were constitutionally sufficient for standing, prudential concerns of ripeness would counsel against accepting jurisdiction. "[T]o prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements," courts must consider "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 149 (1967).

Without a determination from BIS that a specific activity is prohibited by the EAR, there is no factual context for this court to resolve the constitutional challenges against the regulations. Moreover, defendants' repeated assurances that Bernstein is not prohibited from engaging in his activities weigh strongly against any hardship to Bernstein. 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.

Bernstein presented a concrete case or controversy when he first challenged the State Department's classification of his Snuffle computer program as a munition, and then again when control over the program was transferred to the Department of Commerce. Since then, the regulations governing export of encryption items have changed substantially. Bernstein no longer contends that he is prohibited from exporting Snuffle, but instead alleges a laundry list of activities that may or may not violate the EAR.

In the process, this action has devolved into the world of hypotheticals, and like Thomas, is a "case in search of a controversy." Thomas, 220 F.3d at 1137.

CONCLUSION

For the foregoing reasons, Bernstein has failed to put forth specific facts demonstrating that he has standing to bring this action. The court therefore GRANTS defendants' motion for summary judgment and DENIES plaintiff's motion for summary judgment.

Free Speech and DeCss

[Junior Samples]

---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.

So, Did I get this right? -- Dan Bernstein's encryption software is free speech and protected by the First Amendment, but DeCss decryption software is not.

I know that the politicians that make these laws are the best that money can buy, nevertheless, I'm still confused with all of this. Help me understand.