Press Releases: January 2002
On December 24, 2001, EFF told the California Supreme Court that it need not consider the preliminary injunction issued in the Bunner case. The case arises from Mr. Bunner's republication of DeCSS after it became widely publicly available in late 1999. In November, 2001, the Appellate Court had ruled in Mr. Bunner's favor, finding that the lower court had violated Mr. Bunner's First Amendment rights when it forced Mr. Bunner to remove DeCSS from his website.
The DVD Copy Control Association (DVD CCA), which licenses CSS, brought the lawsuit based upon its claim that DeCSS contains a trade secret that was originally part of CSS and so any Internet publication of DeCSS by those who "know or ought to know" of the trade secret claim is illegal.
Stating "rumors of the death of trade secret law have been greatly exaggerated," EFF pro bono attorneys Tom Moore and Rick Wiebe argued, first, that the DVD CCA, which sought the injunction, was now changing is legal and factual theory. Before all of the lower courts DVD CCA claimed that Bunner had no First Amendment rights in the publication of DeCSS, now suddenly it claimed that the First Amendment "intermediate scrutiny" test should be applied. It is improper to bring up new legal and factual arguments for the first time at the state Supreme Court, so that reason alone means that the Supreme Court should not consider the case.
The brief continues: "The Court of Appeal correctly decided the case by applying ordinary and well-settled principles of both trade secret and First Amendment law. Contrary to the DVD-CCA's representations, the Court of Appeal did not hold the USTA [trade secret law] unconstitutional nor did it hold that the First Amendment forbids every trade secret injunction. In reversing the preliminary injunction, the Court of Appeal found simply that when someone like Mr. Bunner republishes an alleged trade secret, a preliminary injunction against republication is a prior restraint under the First Amendment, and that on the facts of this case the trial court had failed to accord sufficient weight to Mr. Bunner's First Amendment right to speak."
The Supreme Court should decide whether to hear the case later this spring.
The brief is available at:
The Appellate Court decision is available here:
More case documents:
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Govt. Censorship of Cryptography Research Unconstitutional
Professor Daniel J. Bernstein today renews his court battle against U.S. government obstructions to Internet security research.
Bernstein's court complaint, to be filed today by Rich Winter and Sarah Pace of the Chicago-based firm McBride Baker & Coles, challenges the constitutionality of the government's regulations on cryptography. Internet software uses cryptography to keep passwords and credit-card numbers safe from attackers.
"I'm trying to help protect computer systems against terrorists and other criminals," said Bernstein, who first filed legal action against the regulations as a Berkeley graduate student in 1995. "It's inexcusable that the government is continuing to interfere with my research in cryptography and computer security."
The U.S. government has imposed unilateral "national security" controls on encryption research and software for decades. Although strong cryptographic software has been available in Europe for many years, the U.S. government changed its cryptography regulations only two years ago in response to increased frustration by U.S. businesses and Professor Bernstein's successful legal case. However, current U.S. cryptography regulations are more complicated and obscure, restricting the flow of scientific information.
"The regulations require, for example, that whenever scientists disclose something new to a foreign colleague they simultaneously send it to the government," Winter said. "This makes in-person collaboration practically impossible."
Attorney Cindy Cohn of McGlashan and Sarrail led the case through a series of victories. In 1999, the Ninth Circuit Court of Appeals affirmed that earlier regulations violated the First Amendment. After the government changed the regulations in response, the appellate court sent the case back to the U.S. District Court. Cohn subsequently joined EFF as Legal Director and transferred the lead position on the case to McBride, Baker & Coles. The case will continue to challenge these regulations until they offer full protection for academic freedom and the Constitutional rights of researchers and programmers.