Bernstein v. US Department of Justice
While a graduate student at the University of California at Berkeley, Bernstein completed the development of an encryption equation (an "algorithm") he calls "Snuffle." Bernstein wishes to publish a) the algorithm (b) a mathematical paper describing and explaining the algorithm and (c) the "source code" for a computer program that incorporates the algorithm. Bernstein also wishes to discuss these items at mathematical conferences, college classrooms and other open public meetings. The Arms Export Control Act and the International Traffic in Arms Regulations (the ITAR regulatory scheme) required Bernstein to submit his ideas about cryptography to the government for review, to register as an arms dealer, and to apply for and obtain from the government a license to publish his ideas. Failure to do so would result in severe civil and criminal penalties. Bernstein believes this is a violation of his First Amendment rights and has sued the government.
After four years and one regulatory change, the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional.
Court Documents
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April 21, 2008
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April 21, 2008
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April 21, 2008
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April 21, 2008
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April 21, 2008
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April 21, 2008
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April 21, 2008
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April 21, 2008
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January 7, 2002
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March 21, 2000
Judge Hug's order granting the Government motion to Reschedule Oral Argument to determine whether there will be an en banc review and setting the date to March 21, 2000.
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October 20, 1999
This is the governments request to have the oral arguement of the en banc request postponed to a later date.
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September 16, 1999
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July 29, 1999
Government reply to Bernstein legal team "Response to Petition for Rehearing and Rehearing En Banc" [PDF]
The government's rebuttal to Bernstein's response to the government motion for a rehearing.
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July 20, 1999
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June 21, 1999
Either by the same panel or by larger en banc review panel. An expected delaying tactic.
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May 6, 1999
Affirming Prof. Bernstein's right to publish encryption source code, and striking down the Export Administration Regulations as unconstitutional.
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March 16, 1998
Testimony by Cindy Cohn before the Senate Judiciary Committee's Subcommittee on the Constitution, Federalism and Property Rights [PDF]
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November 20, 1997
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November 10, 1997
Amicus brief filed by the Thomas Jefferson Center for Freedom of Expression
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November 10, 1997
Amicus brief of Prof. Garrett Epps and other law professors and organizations, arguing that the crypto export controls are an unconstitutional prior restraint of publication, unsavable by the government's attempts to distinguish between one language and another, or to regulate on the basis of the functionality of the speech at issue (computer program code).
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November 10, 1997
Prof. Bernstein (Appellee)'s main brief in the 9th Circuit appeal of the District Court ruling. Argues that the lower court applied the proper tests, that the crypto export regulations are an unconstitutional prior restraint, that they are also unconstitutional under several other First Amendment tests, and that the District Court's relief was appropriate.
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November 10, 1997
Amicus brief filed by RSA Data Security, the National Computer Security Association, former government intelligence management, and others. Argues that the export controls actually undermine the national security by restricting domestic computer security, domestic electronic commerce, and by encouraging good crypto software to be built outside the United States.
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November 10, 1997
Amicus brief filed by EPIC and a number of civil liberties organizations, Internet and computer related organizations, and cryptographers.
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October 16, 1997
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September 22, 1997
9th Cir. order granting, without explanation, govt. motion for a stay of all injunctive relief granted by the Dist. Court. Order also provides for a rapidly expedited hearing, with initial briefs due Oct. and Nov., and hearing set for Dec., 1997.
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September 17, 1997
Exhibits filed with the opposition to govt.'s 9th Circuit motion for emergency stay of District Court's injunctive relief [PDF]
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September 17, 1997
Declaration of David Balenson of Trusted Information Systems, about foreign availability of encryption [PDF]
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September 17, 1997
Bernstein's brief opposing the govt. emergency motion for stay-pending-appeal of all relief granted by the District Court. Brief clearly shows that govt. has introduced no new arguments in its favor, and cannot meet the tests required for such a stay (among them a clear showing of liklihood of success on the merits of their appeal, and demonstrable irreparable harm if they don't get the say. The brief also takes the govt. to task for daring to suggest that because the govt. has censored Bernstein for 5 years it won't hurt him to be censored a little longer pending appeal.
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September 17, 1997
Attachment to Exhibit G: Trusted Information Systems' study of the availability of foreign encryption. [PDF] -
September 17, 1997
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September 10, 1997
to have even Judge Patel's narrowly stayed injunction completely stayed. They are trying to convince the Appeals court that the national security will be damaged if two pages of Snuffle code are posted to the Web.
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September 10, 1997
Declaration of William P. Crowell, Deputy Director of NSA, supporting the emergency stay motion [PDF] -
September 10, 1997
Declaration of William A. Reinsch, Under Secretary for Export Administration, supporting the emergency stay motion [PDF] -
September 9, 1997
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September 9, 1997
Lets Prof. Bernstein post Snuffle 5.0 and updates to it, but no other programs. This is in effect until the appeal of the case is finished.
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September 9, 1997
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August 28, 1997
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August 27, 1997
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August 25, 1997
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July 1, 1997
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June 18, 1997
Short declaration in which Prof. Bernstein demonstrates conclusively that source code is communicative as well as functional, by supplying a short COBOL program that is easily readable and understandable by a person, as well as a computer.
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March 6, 1997
Amendment to the 970113 stipulation, to add a "UIC dorm" network number to the set of networks permitted to access Prof. Bernstein's crypto class Web site.
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January 27, 1997
Plaintiff's Opposition to Defendant's Motion for Reconsideration and Reply to Defendant's Request for Clarifications [PDF]
Bernstein's opposition to the Government motion which asks the judge to reconsider her decision that the State Dept. crypto export controls are unconstitutional.
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January 13, 1997
Stipulation between Bernstein and Secretary of Commerce that he will not be harmed for teaching cryptography to his students in Spring 1997, nor for giving them software (including source code), nor for running a software distribution site restricted to access from the UIC computer network.
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January 13, 1997
Proposed order accepting the supplemental complaint.
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January 13, 1997
Brief argument about why we should be permitted to amend the complaint.
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January 7, 1997
Addition to our original complaint, adding the Administration's new Commerce Department crypto export controls to the list of challenged laws and regulations.
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December 30, 1996
The stipulation proposed in letter from Bernstein's counsel asking the government to stipulate to not enforcing the Commerce Department regulations until they have been reviewed by the court for Constitutionality.
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December 6, 1996
Judge Patel's decision overturning parts of the Arms Export Control Act and International Traffic in Arms Regulations as unconstitutional.
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October 4, 1996
Plaintiff's Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction [PDF]
Our legal arguments that a preliminary injunction should stop the Defendants from using the export laws against Prof. Bernstein or his students for a class on cryptography.
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October 4, 1996
Declaration of Daniel J. Bernstein in Support of Plaintiff's Motion for Preliminary Injunction [PDF]
Dan Bernstein's declaration regarding the course he plans to teach.
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October 4, 1996
The brief motion for a preliminary injunction preventing the government from enforcing the export laws against Dan or his students if he teaches a crypto class. STILL MISSING are several other declarations.
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October 4, 1996
Robert Prior's declaration explaining the whole process by which the PGP Source Code book was created, published, and submitted for export control consideration.
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October 4, 1996
The "proposed order" which, if signed by the judge, would put the preliminary injunction into effect.
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September 11, 1996
Joint Statement of Undisputed Facts, prepared by both sides in the case.
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August 30, 1996
Bernstein's opposition to the government motion for summary judgement.
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July 26, 1996
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July 26, 1996
Bernstein's motion for partial summary judgment, arguing that the ITAR and AECA are unconstitutional because they are a prior restraint on protected publication and speech, that they are vague, and that they are overbroad. Also includes many interesting declarations submitted to the court by various people around the community about scientific communication, crypto, and the export laws.
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July 26, 1996
Government's motion for summary judgement (arguing that their actions are all legal). Filed at the same time as our motion for partial summary judgement.
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April 15, 1996
Apr. 15, 1996 court decision denying the govt. motion to dismiss, in Bernstein v. State Dept. This is a very important decision, as it establishes caselaw precedent for the First Amendment protection of software. The court also takes the government to task for restricting the paper publication of an encryption algorithm for over two years. This is not the final decision in the case, just the denial of the dismissal motion, and judge's commentary.
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October 5, 1995
Reply Memorandum of Points and Authorities in Further Support of Defendant's Motion to Dismiss [PDF]
Reply Memorandum of Points and Authorities in further support of Defendants' Motion to Dismiss. The government's rebuttal to Bernstein's opposition to its motion to dismiss.
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September 22, 1995
Declaration of Lee Tien, an attorney on Bernstein's legal team, declaring that the several memos enclosed were obtained under the Freedom of Information Act from the Department of Justice and are true copies. These memos describe the Justice Department's stance that the export laws are unconstitutional.
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September 22, 1995
Bernstein's motion in opposition to the State Department motion to dismiss the case.
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September 22, 1995
This is a memo prepared for Davis Robinson, then the Legal Adviser for the Department of State. This is a very well-documented paper on the various unconstitutional provisions of ITAR. The two areas this memo concentrates on are the "technical data" definition as well as the definition of "export." Near the conclusion, Simms states: "We remain of the opinion, however, that ... the ITAR still present some areas of potentially unconstitutional application. ...The best legal solution ... is for the Department of State, not the courts, to narrow the regulations."
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September 22, 1995
Bernstein's request that the court take judicial notice of the memos from the Justice Department's Office of Legal Counsel (the Exhibits to Lee Tien declaration).
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September 22, 1995
This is a cover letter for the draft letter from Robert McConnell to Senator Jake Garn. It, and the draft, were written by Theodore Olson, Assistant Attorney General for the Office of Legal Counsel. It reaffirms the OLC position that the proposed EAA, and the existing ITAR, establish a regulatory scheme that "extends too broadly into an area of protected First Amendment speech."
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September 2, 1995
Declaration of Cindy A. Cohn in Support of Request for Denail of Defendants Motion to Dimiss under F.R.C.P. [PDF]
Declaration of Cindy Cohn, plaintiff's chief legal counsel in the Bernstein v. State Dept. case, detailing the reasons why it would be premature to dismiss the case at this time, and the documents and testimony that she would like to bring to the court before a decision is reached.
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August 14, 1995
The government's attempt to have the case dismissed for lack of jurisdiction.
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July 22, 1995
Bernstein's objection to the introduction of evidence (declarations of William Lowell and Louis Giles) at this stage of the proceedings, when only the question of jurisdiction is supposed to be decided. In deciding jurisdiction, the truth of the allegations is assumed unless actual facts are disputed.
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May 10, 1995
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February 21, 1995
The complaint (charges) filed by EFF and Dan Bernstein against the State Dept. et al., seeking a ruling against the US ITAR export restrictions on encryption, as unconstitutional restraint of free speech.
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February 21, 1995
Judge's order sealing the crypto code case exhibits, since ITAR forbids our distributing them.
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October 5, 1993
Letter from Robinson to DJB, determination for five separate CJ Requests as CJ 214-93.
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March 3, 2000
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February 18, 2000
Bureau of Export Control's response to Bernstein's questions about the meaning of the new Jan. 14, 2000 changes to encryption "export" regulations.
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January 16, 2000
Bernstein's questions about the meaning of the new Jan. 14, 2000 changes to encryption "export" regulations.
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December 8, 1997
Unofficial transcript of the hearing in front of a panel of three judges at the 9th Circuit Court of Appeals [PDF]
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November 10, 1997
Provides several more reasons why the crypto export controls are unconsitutional, including violation of the 5th and 14th Amendments and of the Constitutution's "penumbral" privacy guarantees. Very interesting additional arguments that examine not only the rights of the plaintiff, but of his audience, of the scientific community, and and of all potential recipients of plaintiff's encryption software.
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September 22, 1997
Brief govt. motion for leave to provide the court a reply brief rebutting Bernstein's opposition.
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August 28, 1997
Brief minutes of the phone conference held among Judge Patel, Cindy Cohn, and Anthony Coppolino, regarding the government's emergency request for a stay.
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December 30, 1996
Letter from Bernstein's counsel asking the government to stipulate to not enforcing the Commerce Department regulations until they have been reviewed by the court for Constitutionality.
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September 20, 1996
The official transcript of the hearing which occured before Judge Marilyn Hall Patel on October 20, 1996, regarding the cross-motions for summary judgement.
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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July 26, 1996
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October 20, 1995
The court reporter's transcript of the oral arguments made at the hearing on the government's motion to dismiss the Bernstein case for lack of jurisdiction (a motion that was denied).
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