The Bernstein Cryptography Case Is Dismissed

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Wed, 15 Oct 2003 17:19:29 -0400
From: "Peter D. Junger" <junger () samsara law cwru edu>
Subject: The Bernstein Cryptography Case Is Dismissed
To: Dave Farber <dave () farber net>


For IP if you consider it suitable.

This inconclusive ending of the Bernstein case is a consequence
of the government's policy in cases where there are first amendment
challenges to restrictions on the publication of software to claim
that they have no intention of enforcing the law as it is written
and thus getting the cases dismissed as moot.

The end result is that, though Bernstein had originally won in both
the District Court and the 9th Circuit and I lost my later-filed
 case involving much the same issues---Junger v. Daley---in the
federal District Court for the Northern District of Ohio, it is the 6th
Circuit Court of Appeal's decision reversing the District Court's
decision in Junger v. Daley that is the leading case holding that
computer programs are speech that is protected by the First Amendment.
In the Bernstein case, when the government amended the regulations
forbidding the publication of computer programs, the 9th Circuit
Court of Appeals withdrew its earlier opinion in Bernstein's favor
and remanded the case to the district court, where the government
claimed that they would not enforce the restrictions on cryptography
against Dan Bernstein.  In my case, on the other hand, the 6th
Circuit Court of Appeals reversed the District Court's holding that
the First Amendment does protect those who would publish software and
then remanded the case to the District Court for further proceedings.
At that point, rather than risking our victory in the 6th Circuit,
we settled my case, even though the new regulations were---and
are---constitutionally questionable.

Although my case is now the leading case holding that publishing
software is protected by the First Amendment, I do not believe
that we would have had our success without the efforts of Dan
Bernstein and his lawyers from the Electronic Freedom Foundation.

------- Forwarded Message

From: "D. J. Bernstein" <press-20031015 () box cr yp to>
To: export () list cr yp to
Subject: Crypto Case On Indefinite Hold

PRESS RELEASE

Contact: Daniel J. Bernstein, press-20031015 () box cr yp to


CRYPTO CASE ON INDEFINITE HOLD

Chicago, 15 October 2003 - The longest-running court case against the
government's encryption regulations has come to an end, for now.

The regulations were challenged by Daniel J. Bernstein, a professor of
mathematics, statistics, and computer science at the University of
Illinois at Chicago. Bernstein filed his lawsuit in February 1995 and
won four court decisions against the constitutionality of the
government's previous regulations.

In an October 2002 court hearing on the current encryption regulations,
Department of Justice attorney Tony Coppolino told the court that the
government would not enforce several portions of the regulations.

``I can assure you that the regulatory authority does not want
[researchers who are collaborating at conferences] sending us an e-mail
every time they change something in an algorithm,'' Coppolino told the
court. Coppolino also said that commmercial book publishers and
assembly-language publishers did not need to obtain licenses.

As observers predicted after the hearing, Chief Judge Marilyn Hall Patel
of the United States District Court for the Northern District of
California relied on the government's promises and dismissed Bernstein's
case without deciding the constitutionality of the current regulations.

``If and when there is a concrete threat of enforcement against
Bernstein for a specific activity, Bernstein may return for judicial
resolution of that dispute,'' Patel wrote, after citing Coppolino's
``repeated assurances that Bernstein is not prohibited from engaging in
his activities.''

``I hope the government sticks to its promises and leaves me alone,''
Bernstein said in a statement today acknowledging Patel's decision.
``But if they change their mind and start harassing Internet-security
researchers, I'll be back.''

- -30-

------- End of Forwarded Message

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