26 August 1997
Source: Mail list cypherpunks@toad.com

    To: cypherpunks@toad.com, gnu@toad.com
    Subject: Bernstein decision
    Date: Tue, 26 Aug 1997 06:43:22 -0700
    From: John Gilmore <gnu@toad.com>

    [There will be many chances to talk to the press today about this.
     Call them up.  Tell them what it means.]

    Lucky Green said:
    > The ruling provides an interesting data point, but is inconsequential
    > to the software industry.

    Jonathan Wienke said:
    > The decision seems to be a step in the right
    > direction, but a VERY small one.

    However you slice it, getting a Federal judge to declare both crypto
    export control regimes unconstitutional is a major accomplishment.

    This court case has done what a decade of lobbying, two decades of
    citizen activism, and a decade of crypto software entrepreneurship
    were not able to do.  (Though all these things contributed greatly.)
    It stopped the export-control machinery in its tracks.

    Last December, the State Department stopped issuing crypto export
    licenses.  Hugh Daniel had applied for one; it came back marked
    "returned without action".  We later found out, by comparing notes
    with other export applicants, that this was a general policy; they
    didn't want to risk enforcing an unconstitutional law.  They never did
    resume.

    A few weeks later, the Commerce Department started issuing "EI" export
    licenses under new regulations.

    Now there's no other department to turn to.  We haven't found a third
    law that lets them regulate crypto export or use.  And Judge Patel
    mentioned in her decision that "the government cannot avoid the
    constitutional deficiencies of its regulations by rotating oversight
    of them from department to department".  Though she decided that they
    had not deliberately evaded her previous ruling, she's warning them
    not to try it.

    The next few weeks should be very interesting.  There's a mailing list
    for announcements in the case, as appeals are filed, final orders come
    out, any hearings are scheduled, etc.  Send mail to
    <majordomo@toad.com> containing the line "subscribe bernstein-announce".
    These announcements will also automatically go to cypherpunks, but there
    are people who don't want the volume but do want to get the news.  Let
    them know.

    Thanks to all the cypherpunks for your ongoing support and participation
    in the case!

    	John

    ------------------------------------------------------------------------

    To: Ray Arachelian <sunder@brainlink.com>, gnu@toad.com
    Cc: cypherpunks@toad.com
    Subject: Re: Bernstein decision
    Date: Tue, 26 Aug 1997 08:10:28 -0700
    From: John Gilmore <gnu@toad.com>

    > Happy, Happy, Joy! Joy! So does this mean we can freely export all crypto
    > now?  How soon before the EAR's get thrown out?

    The Bernstein legal team is working on a definitive statement in a
    conference call this morning.

    As usual, talk to your own lawyer before doing anything rash.
    We put the decision up on the Web so you (and they) can read it and
    come to your own conclusions.  See http://www.eff.org.

    	John