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.ima...
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
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.
participants (3)
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Declan McCullagh -
Declan McCullagh -
Jonathan Wienke