Bernstein decision

John Gilmore gnu at
Tue Aug 26 06:43:25 PDT 1997

[There will be many chances to talk to the press today about this.
 Call them up.  Tell them what it means.]

Lucky Green said:
> The ruling provides an interesting data point, but is inconsequential
> to the software industry.

Jonathan Wienke said:
> The decision seems to be a step in the right
> direction, but a VERY small one.

However you slice it, getting a Federal judge to declare both crypto
export control regimes unconstitutional is a major accomplishment.

This court case has done what a decade of lobbying, two decades of
citizen activism, and a decade of crypto software entrepreneurship
were not able to do.  (Though all these things contributed greatly.)
It stopped the export-control machinery in its tracks.

Last December, the State Department stopped issuing crypto export
licenses.  Hugh Daniel had applied for one; it came back marked
"returned without action".  We later found out, by comparing notes
with other export applicants, that this was a general policy; they
didn't want to risk enforcing an unconstitutional law.  They never did

A few weeks later, the Commerce Department started issuing "EI" export
licenses under new regulations.

Now there's no other department to turn to.  We haven't found a third
law that lets them regulate crypto export or use.  And Judge Patel
mentioned in her decision that "the government cannot avoid the
constitutional deficiencies of its regulations by rotating oversight
of them from department to department".  Though she decided that they
had not deliberately evaded her previous ruling, she's warning them
not to try it.

The next few weeks should be very interesting.  There's a mailing list
for announcements in the case, as appeals are filed, final orders come
out, any hearings are scheduled, etc.  Send mail to
<majordomo at> containing the line "subscribe bernstein-announce".
These announcements will also automatically go to cypherpunks, but there
are people who don't want the volume but do want to get the news.  Let
them know.

Thanks to all the cypherpunks for your ongoing support and participation
in the case!


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