On September 30, 1999, the Ninth Circuit Court of Appeals announced that it is granting the government's request to rehear the case Bernstein v. U.S. Department of Justice en banc. The case had been previously decided in Professor Bernstein's favor by a three-judge panel of the court. By granting the government's request, the court has withdrawn the panel's earlier decision and has agreed to having all 21 members of the court rehear the case. No dates have been set yet for this reconsideration.
The Electronic Frontier Foundation (EFF) is disappointed by the court's decision, but we are not surprised. The ramifications of this case are far-reaching, and most legal scholars agree that this matter will eventually end up before the Supreme Court of the United States. We are confident that the full Ninth Circuit court will recognize the unconstitutionality of the export restrictions on encryption and will hold as the three-judge panel did, in our favor.
We do not believe that the Clinton Administration's recent announcement on liberalizing the export controls on encryption has any bearing on this case. The export control laws on encryption are unconstitutional as a prior restraint on speech, because they require people to submit their encryption algorithms to the government for review before those algorithms can be exported. The new regulations, which are not due out until sometime in December, will continue to require source code to be reviewed before it can be exported. While the government's new policy appears to make it easier for companies to export encryption products designed for mass markets, it does little to address the constitutional deficiencies in the regulations. In fact, EFF was disappointed that the government's announcement did not even acknowledge that courts have found the export restrictions on encryption to be unconstitutional.
For more information on the Bernstein case, please visit the EFF web site
We'll be sure to send around another update when we learn the rehearing date from the court.
Director of Legal Services
Electronic Frontier Foundation