7 May 1999

    Date: Fri, 07 May 1999 15:34:46 -0700
    To: cypherpunks@cyberpass.net
    From: James Glave <james@wired.com>
    Subject: CDR: BXA Statement on Bernstein

    http://www.bxa.doc.gov/factsheets/EncryptCase.html

    Bureau of Export Administration
    U.S. Department of Commerce
    BXA Statement on Encryption Case

    May 6 Court Decision in Bernstein Encryption Case

    You may have read about a recent court decision regarding encryption
    exports. Please be advised that this decision does not mean that encryption
    products may be exported without regard to the Export Administration
    Regulations (EAR). Regardless of how the decision might be interpreted, the
    decision is subject to a stay. This stay is in effect for at least 45 days.
    (See Department of Justice press release.)

    On May 6, the U.S. Court of Appeals for the Ninth Circuit rendered a
    decision in Bernstein v. The United States Department of Justice. Professor
    Daniel Bernstein filed suit against the U.S. Government after he was
    notified by the State Department that his "Snuffle" encryption program was
    subject to the International Traffic in Arms Regulations (ITAR) and would
    require an export license to post the source code on the Internet.
    Bernstein subsequently amended his petition to challenge the controls on
    encryption products maintained under the EAR after President Clinton placed
    encryption exports under the Commerce Department’s jurisdiction in 1996. In
    a 2-1 decision, the Ninth Circuit court upheld the district court’s
    decision that the regulation of Bernstein’s export of his "Snuffle" program
    "constitute[s] an impermissible prior restraint on speech."

    Exporters should be aware that the decision does not affect the
    applicability of the EAR to exports and reexports of encryption hardware
    and software products or encryption technology. This includes controls on
    the export of encryption software in source code. The EAR remain in effect
    for these items. The Commerce Department will apprise exporters of any
    changes to the encryption controls.

    jtg

    ps: Also see my story on the case, just posted:

    http://www.wired.com/news/news/politics/story/19571.html

    James Glave, News Editor, Wired News http://www.wired.com  +1 (415) 276-8430