Watch the noose tighten around the scrawny neck of the vile crypto export controls! Be part of reclaiming your freedom to teach cryptography and to share your crypto expressions worldwide! Garb yourself in a ritual costume used by powerful and famous people! See the smooth Justice Department minion who lost the Communications Decency Act case once again fail to suppress free speech! Meet renowned East Coast lawyer Robert Corn-Revere, who helped Phil Zimmermann face down ITAR prosecution! Next Friday, 8 November 1996, at 10:30AM we will join forces at Yet Another Hearing in the case of Dan Bernstein v. Large Government Agencies. Convene at the Federal Building in San Francisco, 450 Golden Gate Avenue, in the courtroom of Judge Marilyn Hall Patel. We'll recognize each other because we'll all be dressed like lawyers. We will follow the formal proceedings with a group lunch at Max's Opera Plaza, a block away at Van Ness Avenue and Golden Gate Avenue. Or come prepared to suggest a walkable alternative eatery more to your liking, and we can go there instead. Dan would like to teach a class in cryptography in the upcoming winter semester, but is afraid that teaching it in the ordinary way (posting his class materials on the Web, etc) would violate the ITAR. He thinks that the ITAR is unconstitutional, and that altering his ordinary teaching because of a threat of ITAR prosecution is a "chilling effect" on his constitutional rights of free expression and academic freedom. Because it's not clear whether the earlier, broader, motions that we argued in September will be decided by the time of his class, he has asked the judge for a "preliminary injunction", a court order in the following form: 2. Defendants are ENJOINED from investigating or prosecuting under the Arms Export Control Act (AECA) 22 U.S.C. 2778 et seq., and the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120 et seq., or any export control statute or regulation which would require prepublication licensing of any teaching or scientific exchange activities, the following persons: a. Plaintiff, and b. Plaintiff's students, and c. Any person who receives technical data, cryptography software or defense services from Plaintiff or his students; when such technical data, cryptography software or defense services were given or received as part of teaching or scientific exchanges during or in preparation for the cryptography course to be taught by Plaintiff during the Spring, 1997 semester at the University of Illinois at Chicago. 3. Defendants are further ENJOINED from requiring licensure, approval, registration, reporting or the fulfillment of any requirements of the AECA, ITAR or any export control statute or regulation which would require prepublication licensing of any teaching or scientific exchange activities, the [same] persons... We tried to get the Government to agree to this without getting the judge involved, but despite their protests that they don't control academic activities, they would not agree. So here we go with another "Cypherpunks Dress-Up Day" on a Friday morning in San Francisco. Robert Corn-Revere <rcr@dc1.hhlaw.com> has recently joined the Bernstein legal team. He wrote the excellent arguments for this motion, and will attend the hearing. Here's a sample of his prose. Despite repeated denials that the Government is restricting academic freedom, Defendants display a striking enthusiasm for defining the limits of "appropriate" academic inquiry and communication. Without directly disputing the fact that computer software and source code *is* speech, or that access to such software is essential to Prof. Bernstein's course on cryptography, or that consultation with other researchers in the field (generally via the Internet) is part of the normal academic process, or that posting such materials for students on the World Wide Web is standard academic practice, Defendants baldly assert that such activities have "nothing to do with teaching a class in Chicago." PI Opp at 1. Indeed Defendants state categorically that "the principle of 'academic freedom' does not authorize Plaintiff to transmit abroad [cryptographic software], *even if his own purpose is merely to convey some theory implicit in the software*." Id. at 22-23 (emphasis added). ... ...The Government's argument essentially collapses to the proposition that if it is not restricting speech in *all* cases, it is not engaging in censorship in *some* cases. Yet in every case with which the Plaintiff is familiar in which cryptographers have consulted the Government (or otherwise been brought to the Government's attention), the officials who administer the ITAR scheme have counseled caution, have initiated investigations and have subjected publications to the CJ process. In this respect, Defendants have instituted a kind of "don't ask/don't tell" policy for cryptography. ... If anything, such an informal approach causes greater concern, since the law is clear that sporadic or discretionary enforcement of a policy that restricts speech creates a more significant First Amendment problem than does uniform enforcement. ... The Government's Opposition borders on the schizophrenic. Defendants repeatedly assert that teaching a class on cryptography or making software available to students are not "regulated by the Government", PI Opp at 1, yet just as repeatedly describe the conditions under which the very same activities are regulated by the ITAR. The Government maintains that it "is not threatening to prosecute Plaintiff or anyone for teaching cryptography," Id. at 2, yet continues to argue that the course plan Prof. Bernstein is proposing would violate the export controls. 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. [Actually, not all the paperwork for this Preliminary Injunction is online yet, but we hope it will be by the time you read this...] 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 perhaps at this hearing we can make it legal for one teacher to teach crypto using the Web this winter. Please make a positive impression on the judge. Show her -- by showing up -- that this case matters to lots of people. Most court cases have nobody in the audience. 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. You can take notes if you like. So, here's your excuse to put on a nice costume, take the morning off, 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. Become an EFF member; see http://www.eff.org/join.