Bernstein v. US Department of Justice

Documents

• Court Documents

  • January 7, 2002 Bernstein Second Supplemental Complaint in Bernstein v. Dept. of Justice et al.[PDF, 44.60 KB]
  • March 21, 2000 Order Granting Government Motion to Reschedule Argument[HTML, 2.13 KB]
    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.
  • October 20, 1999 Government Request to Reschedule Oral Argument[HTML, 13.26 KB]
    This is the governments request to have the oral arguement of the en banc request postponed to a later date.
  • September 16, 1999 Government attempt to delay the en-banc review hearing [HTML, 11.27 KB]
  • July 29, 1999 Government reply to Bernstein legal team "Response to Petition for Rehearing and Rehearing En Banc"[GIF, 55.95 KB]
    The government's rebuttal to Bernstein's response to the government motion for a rehearing.
    • Certificate of Service[GIF, 20.37 KB]
    • Certificate of Service, pt. 2[GIF, 19.51 KB]
    • Conclusion of Argument[GIF, 19.01 KB]
    • First page of Argument[GIF, 35.25 KB]
    • Second page of Argument[GIF, 44.83 KB]
    • Table of Authorities[GIF, 4.92 KB]
    • Table of Contents[GIF, 4.55 KB]
    • Third page of Argument[GIF, 36.81 KB]
  • July 20, 1999 Bernstein legal team "Response to Petition for Rehearing and Rehearing En Banc"[HTML, 41.79 KB]
  • June 21, 1999 Government's motion for reconsideration of the decision[HTML, 34.66 KB]
    Either by the same panel or by larger en banc review panel. An expected delaying tactic.
  • May 6, 1999 Decision by the 9th Circuit Court of Appeals[HTML, 80.01 KB]
    Affirming Prof. Bernstein's right to publish encryption source code, and striking down the Export Administration Regulations as unconstitutional.
  • March 16, 1998 Testimony by Cindy Cohn before the Senate Judiciary Committee's Subcommittee on the Constitution, Federalism and Property Rights[HTML, 11.76 KB]
  • November 20, 1997 Government Appeal Reply[PDF, 2.23 MB]
  • November 10, 1997 Bernstein Appeal[HTML, 90.92 KB]
    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.
  • EPIC Amicus[HTML, 99.07 KB]
    Amicus brief filed by EPIC and a number of civil liberties organizations, Internet and computer related organizations, and cryptographers.
  • Jefferson Center Amicus[HTML, 29.80 KB]
    Amicus brief filed by the Thomas Jefferson Center for Freedom of Expression
  • Law Professors' Amicus[HTML, 44.43 KB]
    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).
  • RSA, NCSA Amicus[HTML, 86.10 KB]
    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.
  • October 16, 1997 Government Appeal Brief[PDF, 5.82 MB]
  • September 22, 1997 Government motion for stay granted[HTML, 1.46 KB]
    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.
  • September 17, 1997 Appellee's Opposition to Emergency Stay for Motion[HTML, 35.94 KB]
    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.
  • Exhibits filed with the opposition to govt.'s 9th Circuit motion for emergency stay of District Court's injunctive relief[HTML, 1.25 KB]
    • Declaration of David Balenson of Trusted Information Systems, about foreign availability of encryption[HTML, 2.37 KB]
      • Attachment to Exhibit G: Trusted Information Systems' study of the availability of foreign encryption.[PDF, 900.68 KB]
    • Declaration of Professor Harold Abelson[HTML, 7.40 KB]
    • Declaration of Dr. Andrew W. Appel[HTML, 9.26 KB]
  • September 10, 1997 Government emergency motion to the 9th Circuit Court of Appeals[PDF, 1.72 MB]
    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.
    • Declaration of William A. Reinsch, Under Secretary for Export Administration, supporting the emergency stay motion[PDF, 506.73 KB]
    • Declaration of William P. Crowell, Deputy Director of NSA, supporting the emergency stay motion[PDF, 584.96 KB]
  • September 9, 1997 Government's Notice of Appeal to federal US Court of Appeals of the 9th Circuit[PDF, 198.08 KB]
  • Govt's reply brief challenging appellee's opposition to the stay the govt. asked for.[PDF, 1.10 MB]
  • Judge Patel's stay of her injunction[PDF, 202.82 KB]
    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.
  • August 28, 1997 Bernstein's opposition to the government motion for a stay in the case[HTML, 8.13 KB]
  • August 27, 1997 Government's motion for a stay on the Aug. 25, 1997 injunction[HTML, 26.84 KB]
  • August 25, 1997 Judge Patel's decision that the Export Administration Regulations are unconstitutional [HTML, 88.62 KB]
  • July 1, 1997 Notice of Related Decision mentioning the Supreme Court decision in Reno v. ACLU[HTML, 2.64 KB]
  • June 18, 1997 Bernstein Declaration[HTML, 4.72 KB]
    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.
  • March 6, 1997 Amended Stipulation[HTML, 7.73 KB]
    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.
  • January 27, 1997 Plaintiff's Opposition to Defendant's Motion for Reconsideration and Reply to Defendant's Request for Clarifications[HTML, 11.10 KB]
    Bernstein's opposition to the Government motion which asks the judge to reconsider her decision that the State Dept. crypto export controls are unconstitutional.
  • January 13, 1997 Memorandum in Support of Expedited Motion for Leave to File Supplemental Pleading[HTML, 8.10 KB]
    Brief argument about why we should be permitted to amend the complaint.
  • Proposed Order Granting Leave to file Supplemental Pleading[HTML, 1.73 KB]
    Proposed order accepting the supplemental complaint.
  • Stipulation for Teaching During the Spring 1997 Semester[HTML, 7.68 KB]
    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.
  • January 7, 1997 Plaintiff's First Supplemental Complaint[HTML, 27.84 KB]
    Addition to our original complaint, adding the Administration's new Commerce Department crypto export controls to the list of challenged laws and regulations.
  • December 30, 1996 Stipulation and Order for Temporary Restraining Order[HTML, 3.80 KB]
    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.
  • December 6, 1996 Judge Patel's decision[HTML, 60.96 KB]
    Judge Patel's decision overturning parts of the Arms Export Control Act and International Traffic in Arms Regulations as unconstitutional.
  • October 4, 1996 Declaration of Daniel J. Bernstein in Support of Plaintiff's Motion for Preliminary Injunction[HTML, 8.87 KB]
    Dan Bernstein's declaration regarding the course he plans to teach.
  • Declaration of Robert v. Prior[HTML, 5.76 KB]
    Robert Prior's declaration explaining the whole process by which the PGP Source Code book was created, published, and submitted for export control consideration.
  • Motion for Preliminary Injunction[HTML, 3.38 KB]
    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.
  • Plaintiff's Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction[HTML, 68.29 KB]
    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.
  • Proposed Order Granting Preliminary Injunction[HTML, 3.73 KB]
    The "proposed order" which, if signed by the judge, would put the preliminary injunction into effect.
  • September 11, 1996 Join Statement of Undisputed Facts[HTML, 9.42 KB]
    Joint Statement of Undisputed Facts, prepared by both sides in the case.
  • August 30, 1996 Plaintiff's Opposition to Defendant's Motion for Summary Judgement[HTML, 92.59 KB]
    Bernstein's opposition to the government motion for summary judgement.
  • July 26, 1996 Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment[HTML, 102.96 KB]
    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.
  • Motion for Partial Summary Judgment Archive [ZIP][ZIP, 123.92 KB]
    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.
  • April 15, 1996 Court decision denying Government motion to dismiss[HTML, 46.42 KB]
    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.
  • October 5, 1995 Reply Memorandum of Points and Authorities in Further Support of Defendant's Motion to Dismiss[HTML, 33.86 KB]
    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.
  • September 22, 1995 Declaratin of Lee Tien in Support of Plaintiff's Request for Judicial Notice[HTML, 4.01 KB]
    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.
    • Exhibit A[HTML, 43.66 KB]
      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."
    • Exhibit B[HTML, 1.95 KB]
      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."
  • Plaintiff's Opposition to Motion to Dismiss[HTML, 89.62 KB]
    Bernstein's motion in opposition to the State Department motion to dismiss the case.
  • Plaintiff's Request for Judicial Notice[HTML, 2 KB]
    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).
  • September 2, 1995 Declaration of Cindy A. Cohn in Support of Request for Denail of Defendants Motion to Dimiss under F.R.C.P.[HTML, 15.25 KB]
    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.
  • August 14, 1995 Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss[HTML, 44.14 KB]
    The government's attempt to have the case dismissed for lack of jurisdiction.
  • July 22, 1995 Plaintiff's Objection to Evidence[HTML, 12.67 KB]
    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.
  • May 10, 1995 The government's original response to Bernstein's lawsuit[HTML, 42.65 KB]
  • February 21, 1995 Complaint (Declaratory Relief, Injunctive Relief)[HTML, 81.89 KB]
    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.
    • Exhibit E[HTML, 1.61 KB]
      Letter from Robinson to DJB, determination for five separate CJ Requests as CJ 214-93.
    • Exhibit C[HTML, 2.33 KB]
      Letter from DJB to Ambassador Newlin, Appeal of CJ 191-92.
    • Exhibit D[HTML, 1.37 KB]
      Cover letters from DJB to State Dept for five separate CJ Requests
    • Exhibit B[HTML, 1.54 KB]
      Letter from Robinson to DJB, CJ determination for CJ 191-92
    • Exhibit A[HTML, 3.57 KB]
      Letter from DJB to State Dept. (CJR - Commodity Jurisdiction Request).
  • Order Sealing Exhibits to Complaint[HTML, 1.70 KB]
    Judge's order sealing the crypto code case exhibits, since ITAR forbids our distributing them.

• Uncategorized

  • March 3, 2000 Bernstein's Brief Requesting Remand to Dist. Court[HTML, 11.12 KB]
  • February 18, 2000 Burearu of Export Advisory[HTML, 16.72 KB]
    Bureau of Export Control's response to Bernstein's questions about the meaning of the new Jan. 14, 2000 changes to encryption "export" regulations.
  • January 16, 2000 Bureau of Export Regulations Questions[HTML, 28.91 KB]
    Bernstein's questions about the meaning of the new Jan. 14, 2000 changes to encryption "export" regulations.
  • December 8, 1997 Unofficial transcript of the hearing in front of a panel of three judges at the 9th Circuit Court of Appeals[HTML, 53.23 KB]
  • November 10, 1997 Amicus brief of the American Assoc. for the Advancement of Science[HTML, 71.75 KB]
    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.
  • September 22, 1997 Motion for leave to file reply[HTML, 1.24 KB]
    Brief govt. motion for leave to provide the court a reply brief rebutting Bernstein's opposition.
  • August 28, 1997 Conference Minutes[HTML, 765 B]
    Brief minutes of the phone conference held among Judge Patel, Cindy Cohn, and Anthony Coppolino, regarding the government's emergency request for a stay.
  • December 30, 1996 Letter from Bernstein's counsel[HTML, 10.84 KB]
    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.
  • September 20, 1996 Transcript of Proceedings before the honorable Marilyn Hall Patel, Judge[HTML, 99.34 KB]
    The official transcript of the hearing which occured before Judge Marilyn Hall Patel on October 20, 1996, regarding the cross-motions for summary judgement.
  • October 20, 1995 Reporter's transcript of proceedings[HTML, 66.41 KB]
    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).
  • July 22, 1993 Dan Bernstein and Charles Ray Transcript[HTML, 5.79 KB]
    A revealing and frustrating transcript of a discussion between Dan Bernstein and Charles Ray (of the Office of Defense Trade Controls, which enforced the export control laws at that time).