Department of Justice Statement on Ninth Circuit Court of Appeals Decision in Encryption Case
On May 6, a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco issued a decision in a case involving government controls on encryption exports. The Department of Commerce and the Department of Justice are currently reviewing the Ninth Circuit's decision in Daniel Bernstein v. United States Department of Justice and United States Department of Commerce. We are considering possible avenues for further review, including seeking a rehearing of the appeal en banc in the Ninth Circuit.
The regulations controlling the export of encryption products currently remain in full effect. The Ninth Circuie effect until the court issues its mandate, which will not occur for at least 45 days. If the government asks the Ninth Circuit to rehear the appeal during that time, the mandate will not issue until after the Ninth Circuit has acted on the government's request.
The district court injunction in this case relating to the encryption export regulations has been stayed by orders isued earlier by the district court and the Ninth Circuit, and the stays of the injunction remain in effect until the mandate issues. Accordinaly, all persons who wish to engage in encryption export activity, including the posting or other distribution of encryption software on the Internet, must still comply with the export licensing requirements of the Export Administration Regulations, administered by the U.S. Department of Commerce's Bureau of Export Administration (BXA).