reposted with permission. A. Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax) ---------- Forwarded message ---------- Date: Wed, 17 Apr 1996 05:23:47 -0400

From: Mike Godwin <mnemonic@well.com> To: Multiple recipients of list <cyberia-l@warthog.cc.wm.edu> Subject: Re: Bernstein case decisision

[...] The following summary is from my colleague Shari Steele: What Judge Patel said. First, the judge ruled that Bernstein could bring his case even though the Arms Export Control Act specifically precludes judicial review, because what we are asking the judge to review (i.e., the constitutionality of the statute and its regulations) was not what had been precluded (i.e., the government's determination in a particular instance whether or not something was exportable). "With respect to constitutional questions, the judicial branch not only possesses the requisite expertise to adjudicate these issues, it is also the best and final interpreter of them." Next, the judge determined that only the source code was at issue here, not Bernstein's academic paper describing the source code. Bernstein tried to get the government to rule separately on the paper and the code back in 1993 by filing separate CJ requests. The State Department merged the requests and rejected them all. On June 29, 1995, after we filed this suit, the government sent Dan a letter saying that the paper could be published and never had been forbidden. While Judge Patel claimed that the issue of the paper now appeared to be moot, she commented, "It is disquieting than an item defendants now contend could not be subject to regulation was apparently categorized as a defense article and subject to licensing for nearly two years, and was only reclassified after plaintiff initiated this action." Finally, the key ruling in the case. "This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French....Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it....Thus, even if Snuffle source code, which is easily compiled into object code for the computer to read and easily used for encryption, is essentially functional, that does not remove it from the realm of speech....For the purposes of First Amendment analysis, this court finds that source code is speech." This is the first time that we know of that a court has ruled that source code is speech for First Amendment analysis. This is a Big Deal - a very important precedent. The judge drew an analogy to copyright law, which treats computer software as a "literary work" and offers it copyright protection, to help her come to her conclusion. The judge, therefore, did not throw out any of our claims (the ITAR acts as a prior restraint on speech, the ITAR is overbroad, and the ITAR is vague). She looked at each of them one by one and determined that each of them had merit. What this decision means. Most directly, it means that we can continue on with our lawsuit. The government had brought a motion to dismiss the case, contending that the court lacked jurisdiction to hear this matter because it was a matter of national security. The judge struck that down and said that we can go forward with our suit. More indirectly, the judge's ruling sets the stage for us winning at trial. She clearly "gets it," and isn't intimidated by the government's use of precedential cases that aren't on point.