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


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.


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


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