US Seeks to Stay Bernstein Court Order

John Gilmore gnu at
Thu Aug 28 14:50:18 PDT 1997

Forwarded-by: "--Todd Lappin-->" <telstar at>
>From Wired News:

US Seeks to Stay Court's Crypto Order
by Rebecca Vesely

6:02pm  27.Aug.97.PDT The Justice Department is seeking
an emergency stay of a ruling by a US District Court in San
Francisco that granted a University of Illinois professor
permission to export his encrypted email program.

Judge Marilyn Hall Patel ruled in Bernstein v. Department
of State that Daniel Bernstein can export his Snuffle
program and make it available online without an export
license. Her landmark ruling holds that software programs
are literary works protected under the First Amendment.

The Justice Department told Bernstein attorney Cindy Cohn
on Wednesday afternoon that it will seek an emergency stay
on the preliminary injunction allowing Bernstein to export
Snuffle. The department is expected to file papers
Wednesday night or Thursday morning, Cohn said. Justice
officials were not immediately available for comment.

"This is serious," Cohn said. "They feel that national
security will be breached. But our opinion is that he has the
right to publish his material."

In what is called an ex parte emergency stay, the Justice
Department asked Patel to reconsider her decision to grant a
preliminary injunction. If Patel decides not to reverse her
decision, the department can ask the 9th US Circuit Court of
Appeals to override her decision.

"It is unlikely Patel will give it to them," said John
Gilmore, founding board member of the Electronic Frontier
Foundation, which was a primary sponsor of Bernstein in
the case. "If she does, we will continue with the appeal
process and try to make the decision stick."

The decision could affect not just the fate of Bernstein's
research, but the US encryption export policy. Patel said in
her decision that current export encryption regulations
"are an unconstitutional prior restraint in violation of the
First Amendment."

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