19 October 1999

For Bernstein case background: http://www.eff.org/bernstein/ 

Date: Mon, 18 Oct 1999 17:25:09 -0700
To: bernstein-announce@toad.com
From: Cindy Cohn <Cindy@mcglashan.com>
Subject: Bernstein case:  govt moves for a continuance of en banc
  argument

Today the government asked [see below] the 9th Circuit en banc panel for 
further briefing and a delay in the oral argument date (currently set 
for December 16, 1999) based upon the fact that it will issue revised 
encryption regulations on December 15, 1999.

Although admitting that the new regulations may "not materially change the 
treatment of source code" the government has told the Court that "it is 
possible that the revised regulations will alter the treatment of source 
code in ways that could have a bearing on the constitutional issues before 
this Court."

Addressing the fact that the public pronouncements about the new 
regulations, including the "Questions and Answers" page of the BXA web 
site  (www.bxa.doc.gov/Encryption/q%26a99.htm), state that source code will 
not be affected by the changed regulations, the government said "That 
document does not reflect the review that is currently taking place."

Bernstein will oppose the motion, on the grounds that the mere 
"possibility" that the regulations will impact source code is insufficient 
to grant a further delay of this case, especially since:

	1.  The courts have held that the regulations constitute a prior restraint 
            on speech,

	2.  Professor Bernstein has now been waiting over 7 years to publish his 
            program, and

	3.  The government already enjoyed an 8 month delay in this case when it 
            issued revised regulations that did not materially affect the case 
            in 1997.

Bernstein's opposition should be filed by October 29.

Cindy
***************************************
Cindy A. Cohn, Cindy@McGlashan.com
McGlashan & Sarrail, P.C.
177 Bovet Road, 6th Floor
San Mateo, CA 94402
(650) 341-2585 (tel)
(650) 341-1395 (fax)

Source: 12-page fax from Cindy Cohn (pp. 3, 4 and 5 of DoJ fax not provided).

[Fax header] OCT-18-1999  17:35             DOJ APPELLATE STAFF              202 514 7964       P.01/15

                                                    U.S Department of Justice
__________________________________________________________
Washington, D.C. 20530 


                   CIVIL DIVISION/APPELLATE STAFF

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   DATE:        10-18-99             TIME: 5:10

   TO:          Cindy Cohn

   FAX. NO.:    650-341-1395

   COMMENTS: 



   *         *         *         *         *         *         *

   FROM:        Scott R. McIntosh

                Civil Division, Appellate Staff
                601 D Street, N.W.
                United States Department of Justice
                Washington, D.C.  20530

   PHONE NO.:   (202) 514-4052

   FAX NOS.:    202 514-7964 (Rm. 9554)

   THERE ARE A TOTAL OF  15  PAGES, INCLUDING THIS COVER PAGE, IN
   THIS TRANSMISSION.

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________



DANIEL J. BERNSTEIN,

Plaintiff-Appellee,

v.

U.S. DEPARTMENT OF COMMERCE, et al.,

Defendants-Appellants.


________________________________________

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)  		           No. 97-16686

APPELLANT'S MOTION TO RESCHEDULE ORAL ARGUMENT

     Appellant Department of Commerce hereby moves for the Court to reschedule the oral argument to take account of forthcoming changes to the regulations at issue in this case. The grounds for this motion are as follows:

     1. This case involves a constitutional challenge to provisions of the Export Administration Regulations, ("EAR"), 15 C.F.R. 730-774, that control the export of encryption products. Appellee Daniel Bernstein contends that the EAR's export controls on encryption software in the form of source code violate the First Amendment. In May 1999, a panel of this court issued a decision sustaining Bernstein's First Amendment challenge to the encryption export regulations.

     2. On September 30, 1999, the Court granted the Department's petition for rehearing en banc. On October 5, 1999, the Court issued an order setting the case for en banc reargument on December 16, 1999. The Court's order does not provide for the filing of additional briefs by the parties.

     3. The encryption export regulations that are the subject of this litigation are currently being revised by the Department of Commerce. The revisions are intended to reflect an updated encryption export policy announced by the Clinton Administration on September 16, 1999. The updated export policy calls for significant modifications to existing encryption export controls (see Attachment A infra).

     4. The Department of commerce has announced that it intends to issued the revised encryption export regulations on or before December 15, 1999. That deadline is one day before the date currently selected for en banc reargument in this case.

     5. The revisions being implemented by the Department of Commerce entail extensive changes in the existing terms of the encryption export regulations. At this time, the details of the revised regulations are under review. One of the subjects currently under review in connection with the policy update is the regulatory treatment of encryption source code. It is possible that the revised regulations will not materially change the treatment of source code. But it is also possible that the revised regulations will alter the treatment of source code in ways that could have a bearing on the constitutional issues before this Court.1

_____________________

1 In connection with the announcement of the Administration's encryption policy update on September 16, the Department of Commerce issued a "question and answer" document regarding the update that indicated, inter alia, that existing controls on the export of encryption source code would not be changed. That document does not reflect the review that is currently taking place.

     6. Because the regulations at issue in this case are about to undergo a substantial revision, because the revised regulations may not be issued until immediately before the current reargument date, and because the specific terms of the revised regulations may be relevant to the constitutional issues before the Court, the Department of Commerce believes that the Court would benefit by postponing reargument briefly until after the regulations have been issued. The Department further believes that the Court would benefit by permitting the parties to file supplemental briefs explaining the new regulations and addressing the impact (if any) of the revisions on the constitutional issues before the Court.

     7. For these reasons, the Department moves for the Court to remove this case from the December argument calendar. The Department further moves for the Court to grant the parties leave to file supplemental briefs within twenty-one (21) days after the revised regulations are issued. The case should be rescheduled for en banc argument at the earliest available date after the filing of the parties' supplemental briefs.

Respectfully submitted,

[Signature]

DOUGLAS N. LETTER
(202) 514-3602

[Signature]

SCOTT R. McINTOSH
(202) 514-4052

Attorneys, Appellate Staff
Civil Division, Room 9550
Department of Justice
601 D Street, N.W.
Washington, D.C. 20530-0001

Counsel for Department of Commerce

October 18, 1999

ATTACHMENT A

THE WHITE HOUSE

Office of the Press Secretary

For Immediate Release September 16, 1999

STATEMENT BY THE PRESS SECRETARY

Administration Announces New Approach to Encryption

One year ago today, Vice President Gore announced updates to the Administration’s encryption policy to serve the full range of national interests: promoting electronic commerce, supporting law enforcement and national security, and protecting privacy. The announcement permitted the export of strong encryption to protect sensitive information in the financial, health, medical, and electronic commerce sectors. It also included support for the continued ability of the nation’s law enforcement community to access, under strictly defined legal procedures, the plain text of criminally related communications and stored information. At that time the Administration committed to reviewing its policy in one year. Today, the Administration announces the results of that review, conducted in consultation with industry and privacy groups and the Congress.

The strategy announced today continues to maintain the balance among privacy, commercial interests, public safety and national security. This approach is comprised of three elements – information security and privacy, a new framework for export controls, and updated tools for law enforcement. First, the strategy recognizes that sensitive electronic information – government, commercial, and privacy information -- requires strong protection from unauthorized and unlawful access if the great promise of the electronic age is to be realized. Second, it protects vital national security interests through an updated framework for encryption export controls that also recognizes growing demands in the global marketplace for strong encryption products. Finally, it is designed to assure that, as strong encryption proliferates, law enforcement remains able to protect America and Americans in the physical world and in cyberspace.

With respect to encryption export controls, the strategy announced today rests on three principles: a one-time technical review of encryption products in advance of sale, a streamlined post-export reporting system, and a process that permits the government to review the exports of strong encryption to foreign government and military organizations and to nations of concern. Consistent with these principles, the government will significantly update and simplify export controls on encryption.

The updated guidelines will allow U.S. companies new opportunities to sell their products to most end users in global markets. Under this policy:

The Administration intends to codify this new policy in export regulations by December 15, 1999, following consultations on the details with affected stakeholders.

In support of public safety, the President is today transmitting to the Congress legislation that seeks to assure that law enforcement has the legal tools, personnel, and equipment necessary to investigate crime in an encrypted world. Specifically, the Cyberspace Electronic Security Act of 1999 would:

In contrast to an early draft version of the bill, the Administration’s legislation does not provide new authorities for search warrants for encryption keys without contemporaneous notice to the subject. The bill does not regulate the domestic development, use and sale of encryption. Americans will remain free to use any encryption system domestically.

The Administration looks forward to continuing to work with the Congress, industry, and privacy and law enforcement communities to ensure a balanced approach to this issue. 

# # #

CERTIFICATE OF SERVICE

I hereby certify that on October 18, 1999, I filed and served the foregoing APPELLANT'S MOTION TO RESCHEDULE ORAL ARGUMENT AND FILE SUPPLEMENTAL BRIEFS by sending an original and 12 copies to the Clerk of the Court by overnight mail delivery and by sending copies to counsel for the appellee and the amici in the manner specified below:

By Overnight Mail and Fax:

Cindy Cohn
McGlashan & Sarrail
177 Bovet Road, Sixth Floor
San Mateo, CA 94402
Tel: 650-341-2585
Fax: 650-341-1395

By Overnight Mail:

Elizabeth Pritzker
First Amendment Project
1736 Franklin street, 9th Floor
Oakland, CA 94612
Tel: 510-208-7744

Lee Tien
1452 Curtis Street
Berkeley CA 94702
Tel: 510-525-0817

Robert Corn-Revere
Hogan & Hartson, L.L.P.
555 Thirteenth Street NW
Washington DC 20004
Tel: 202-637-5600

By First-Class Mail:

Brian Conboy
Willkie Farr & Gallagher
Three Lafayette Centre
1155 21st Street NW
Washington DC 20036-3384

Garrett Epps
Professor of Law
1221 University of Oregon
Eugene OR 97403-1221
Tel: 541-346-3111

John M. Faust
Vinson & Elkins LLP
Willard Office Building
1455 Pennsylvania Avenue. NW
Washington DC 20004-1008

Dawn C. Nunziato
Covington & Burling
1201 Pennsylvania Ave. NW
P.O. Box 7566
Washington DC 20044-7566
Tel: 202-662-5543

J. Joshua Wheeler
The Thomas Jefferson Center for the
  Protection of Free Expression
400 Peter Jefferson Place
Charlottesville VA 22911-8691
Tel: 804-295-4784

[Signature]

Scott R. McIntosh

[End]

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