Reflections on the Bernstein ruling

[Blake Coverett]

Greg Broiles wrote:
> In brief, Judge Patel ruled that Category XIII(b) (the category which
> refers to cryptographic equipment/software) is unconstitutional because it
> functions as a prior restraint upon speech without providing important
> procedural safeguards which are required when a prior restraint scheme is
> put into place. She ruled that the "technical data" provision of the ITAR
> is also unconstitutional when it refers to technical data about Category
> XIII(b) items because of the lack of procedural safeguards.

I'm not even remotely a lawyer, but I have to disagree with the second 
sentence above.  As I read it Judge Patel believes that the technical
data provisions are also unconstitutional but can not rule that way
because United States v. Edler, 579 F.2d 516 (9th Cir. 1978) is the
law in the 9th circuit.  The relevant quote is:

    While this court is inclined to agree, despite revisions to the
    ITAR since 1984 and especially in light of Freedman and FW/PBS, Edler
    remains the law of this Circuit and this court is bound by its
    holding.[13] Moreover, Edler was reaffirmed, albeit in cursory fashion,
    by the Ninth Circuit in 1989. United States v. Posey, 864 F.2d 1487,
    1496 (9th Cir.  1989). If the Ninth-Circuit wants to reconsider those
    opinions it is free to do so, but that decision is theirs to make.

Happily she does go on to say that because she has ruled that
Category XIII(b) is unconstitutional that the technical data provisions
for items relating to XIII(b) are unenforceable.

regards,
-Blake