We're having another "Cypherpunks Dress-Up Day" on Friday, September 20th. Meet at the Federal Building in San Francisco, 450 Golden Gate Avenue, at 11:45AM, in high-quality business drag. [There will also be a regular Saturday meeting this month, on Sep 14.] It's been eleven months to the day since our first hearings in Dan Bernstein's lawsuit against the NSA and State Department. At this hearing, starting at High Noon, we hope to convince Judge Marilyn Hall Patel to declare that the ITAR (export regulations) and AECA (export law) are unconstitutional. We are asking her to order the State Department to immediately stop enforcing them with respect to cryptographic software. Simultaneously, the government is asking her to declare that their actions have been completely legal and Constitutional, and to throw out our lawsuit. Judge Patel has asked both sides to fully explore all the legal issues in the case for this hearing, leaving aside any unresolved factual questions (like exactly how many people have had their exports denied). She plans to decide the questions: * Should the government's actions be examined under the "strict scrutiny" appropriate when they attempt to restrict speech, or under a looser "O'Brien" test that applies when the government seeks to restrict conduct and only incidentally restricts speech? * Is the ITAR Scheme a prior restraint on speech? * Does the ITAR Scheme impermissibly punish speech after the fact? * Is the ITAR Scheme too vague to constitutionally regulate speech? * Is the ITAR Scheme so broadly worded that it unconstitutionally limits speech protected by the First Amendment? * Were the government's actions as applied to Dan Bernstein unconstitutional restrictions on his First Amendment rights? It's possible, but unlikely, that the judge will decide some of this then-and-there. Instead, we will get some insights into how she is leaning, based on her questions and comments. Her written decision will come out some weeks or months later. She then plans to certify the case for immediate appeal to a higher court (the Ninth Circuit, also here in San Francisco), to confirm or deny her legal analysis.
From there it will probably go to the Supreme Court.
Watch the wheels of justice grind! Meet the intrepid lawyers who are working hard to protect our rights! Shake hands with one or more NSA representatives specially flown in for the occasion! Meet some journalists and be quoted talking about crypto freedom! We will follow the hearing with a group lunch at Max's Opera Plaza, a block away at Van Ness Avenue and Golden Gate Avenue. As background, Dan Bernstein, ex-grad-student from UC Berkeley, is suing the State Department, NSA, and other agencies, with help from the EFF. These agencies restrained Dan's ability to publish a paper, as well as source code, for the crypto algorithm that he invented. We claim that their procedures, regulations, and laws are not only unconstitutional as applied to Dan, but in general. Full background and details on the case, including all of our legal papers (and most of the government's as well), are in the EFF Web archives at: http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case. Like Phil Karn's and Peter Junger's cases, this lawsuit really has the potential to outlaw the whole NSA crypto export scam. We intend to make your right to publish and export crypto software as well- protected by the courts as your right to publish and export books. It will probably take more years, and an eventual Supreme Court decision, to make it stick. But this is the hearing at which we plan to convince our judge that these laws really are unconstitutional. Her order restoring our legal right to publish crypto source code could come out by Christmas! Please make a positive impression on the judge. Show her -- by showing up -- that this case matters to more people than just the plaintiff and defendant. Demonstrate that her decision will make a difference to society. That the public and the press are watching, and really do care that she handles the issue well. We'll have to be quiet and orderly while we're in the courthouse. There will be no questions from the audience (that's us), and no photography, but the session will be tape-recorded and transcribed, and you can take notes if you like. The lobby guards will want to hold onto guns, "munitions", and even small pocketknives, before they'll let you go upstairs to the courtrooms. So, here's your excuse to put on a nice costume, take an early lunch, and pay a call on the inner sanctum of our civil rights. See you there! John Gilmore PS: If you can't come, you can still contribute. Join EFF's Legal Defense Fund; see http://www.eff.org/pub/Alerts/cyberlegal_fund_eff.announce.