Commerce Department encryption rules declared unconstitutional

---------- Forwarded message ----------
Date: Mon, 25 Aug 1997 19:39:35 -0700 (PDT)
From: Declan McCullagh <declan@well.com>
To: fight-censorship-announce@vorlon.mit.edu
Subject: Commerce Department encryption rules declared unconstitutional

A Federal judge in San Francisco ruled today that the Commerce
Department's export controls on encryption products violate the
First Amendment's guarantees of freedom of speech.

In a 35-page decision, U.S. District Judge Marilyn Patel said the
Clinton administration's rules violate "the First Amendment on the
grounds of prior restraint and are, therefore, unconstitutional."
Patel reaffirmed her December 1996 decision against the State
Department regulations, saying that the newer Commerce Department
rules suffer from similar constitutional infirmities.

Patel barred the government from "threatening, detaining,
prosecuting, discouraging, or otherwise interfering with" anyone
"who uses, discusses, or publishes or seeks to use, discuss or
publish plaintiff's encryption programs and related materials."
Daniel Bernstein, now a math professor at the University of
Illinois, filed the lawsuit with the help of the Electronic
Frontier Foundation.

Patel dismissed the State, Energy, and Justice departments and
CIA as defendants. President Clinton transferred jurisdiction over
encryption exports from the State to the Commerce department on
December 30, 1996.

The Justice Department seems likely to appeal the ruling to the
Ninth Circuit, which could rule on the case in the near future.

-Declan

More info:

http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/970825_decision.images/page-images.html

--Boundary..3980.1071713728.multipart/signed
Content-Type: text/plain
Content-Transfer-Encoding: 7bit

At 07:39 PM 8/25/97 -0700, Declan McCullagh wrote:
>A Federal judge in San Francisco ruled today that the Commerce
>Department's export controls on encryption products violate the
>First Amendment's guarantees of freedom of speech.
>
>In a 35-page decision, U.S. District Judge Marilyn Patel said the
>Clinton administration's rules violate "the First Amendment on the
>grounds of prior restraint and are, therefore, unconstitutional."
>Patel reaffirmed her December 1996 decision against the State
>Department regulations, saying that the newer Commerce Department
>rules suffer from similar constitutional infirmities.
>
>Patel barred the government from "threatening, detaining,
>prosecuting, discouraging, or otherwise interfering with" anyone
>"who uses, discusses, or publishes or seeks to use, discuss or
>publish plaintiff's encryption programs and related materials."
>Daniel Bernstein, now a math professor at the University of
>Illinois, filed the lawsuit with the help of the Electronic
>Frontier Foundation.

So if someone posts a few lines of source code to coderpunks, the
government reserves the right to prosecute, unless the poster's name is
Daniel Bernstein, and the algorithm is Snuffle 5.0.  The judge seems to be
saying "I think Bernstein's case has merit, so I will order the government
to stop hassling him, but since I am too chickenbleep to challenge the
unconstitutional usurpation of power on the part of Clinton, Congress, the
State Dept., and the Dept. of Commerce, I will pass the buck and let the
issue be decided on appeal."  The decision seems to be a step in the right
direction, but a VERY small one.


Jonathan Wienke

What part of "the right of the people to keep and bear Arms, shall not be
infringed" is too hard to understand? (From 2nd Amendment, U.S. Constitution)

When everyone is armed, criminals fear everyone, not just the police.

PGP 2.6.2 RSA Key Fingerprint: 7484 2FB7 7588 ACD1  3A8F 778A 7407 2928
DSS/D-H Key Fingerprint: 3312 6597 8258 9A9E D9FA  4878 C245 D245 EAA7 0DCC
Public keys available at pgpkeys.mit.edu. PGP encrypted e-mail preferred.

US/Canadian Windows 95/NT or Mac users:
Get Eudora Light + PGP 5.0 for free at http://www.eudora.com/eudoralight/
Get PGP 5.0 for free at http://bs.mit.edu:8001/pgp-form.html
Commercial version of PGP 5.0 and related products at http://www.pgp.com
Eudora Light + PGP = Free, Convenient Communication Privacy

--Boundary..3980.1071713728.multipart/signed
Content-Type: application/octet-stream; name="pgp00008.pgp"
Content-Transfer-Encoding: base64
Content-Disposition: attachment; filename="pgp00008.pgp"
Content-Description: "PGP signature"

LS0tLS1CRUdJTiBQR1AgU0lHTkFUVVJFLS0tLS0KVmVyc2lvbjogUEdQIGZv
ciBQZXJzb25hbCBQcml2YWN5IDUuMApNZXNzYWdlSUQ6IGlodVpiNDc3eFFI
eUZYTE1lN3NINkEyZlYzdm01QzQ4CgppUUEvQXdVQk5BSjlxOEpGMGtYcXB3
M01FUUxvTHdDZmZIVEk0UzFMdTdyOGErTHpTYTE3QzNRZVkwMEFuaTNVCndJ
MFEzQnU2cjc1cHdMYWxtTy8yZkhLMAo9cWNFMAotLS0tLUVORCBQR1AgU0lH
TkFUVVJFLS0tLS0K
--Boundary..3980.1071713728.multipart/signed--

I think that's about right. One of the important questions was how broadly
Patel would rule, whether her ruling would apply just to Bernstein &
associates or whether she would enjoin the government from enforcing
ITAR/EAR at all.

Unfortunately, she chose the former. But look on the bright side: her
narrow decision may be less likely to be reversed, no?

-Declan


On Mon, 25 Aug 1997, Jonathan Wienke wrote:
> >Patel barred the government from "threatening, detaining,
> >prosecuting, discouraging, or otherwise interfering with" anyone
> >"who uses, discusses, or publishes or seeks to use, discuss or
> >publish plaintiff's encryption programs and related materials."
> >Daniel Bernstein, now a math professor at the University of
> >Illinois, filed the lawsuit with the help of the Electronic
> >Frontier Foundation.
> 
> So if someone posts a few lines of source code to coderpunks, the
> government reserves the right to prosecute, unless the poster's name is
> Daniel Bernstein, and the algorithm is Snuffle 5.0.  The judge seems to be
> saying "I think Bernstein's case has merit, so I will order the government
> to stop hassling him, but since I am too chickenbleep to challenge the
> unconstitutional usurpation of power on the part of Clinton, Congress, the
> State Dept., and the Dept. of Commerce, I will pass the buck and let the
> issue be decided on appeal."  The decision seems to be a step in the right
> direction, but a VERY small one.