EFF "Legal Cases - Crypto - Bernstein v. US Dept. of State: Legalese" Archive

Files in this Archive

20020107_amended_complaint.html

Bernstein Second Supplemental Complaint in Bernstein v. Dept. of Justice et al. (Jan. 7, 2002)

20020107_amended_complaint.pdf

Bernstein Second Supplemental Complaint in Bernstein v. Dept. of Justice et al. (Jan. 7, 2002) [PDF version]

20000303_bernstein_remand_brief.html

Plaintiff Bernstein's Letter Brief by Order of the Court, requesting the 9th Circuit to remand the case back to the District Court, which should examine implications of Jan. 14, 2000 changes to the encryption "export" regulations. Brief also opposes, on principle, the government's move to overturn the injunction against enforcement of the old regulations. (Mar. 3, 2000)

20000218_bxa_export_advisory.html

Bureau of Export Control's response to Bernstein's questions about the meaning of the new Jan. 14, 2000 changes to encryption "export" regulations. (Feb. 18, 2000)

20000116_bernstein_bxa_questions.html

Bernstein's questions about the meaning of the new Jan. 14, 2000 changes to encryption "export" regulations. (Jan. 16, 2000)

19991028_ord_gran_resch.html

Judge Hug's order granting the Government motion to Reschedule Oral Argument to determine whether there will be an en banc review and setting the date to March 21, 2000.

19991018_delay_enbanc_motion.html

Government attempt to delay the en-banc review hearing scheduled for December 16, 1999.

19990729_govt_appeal_imgs/index.html

The government's rebuttal to Bernstein's response to the government motion for a rehearing.

19990720_rehear_response.html

The response of Danial Bernstein and his legal team asking that the government's motion for rehearing in the 9th circuit be denied.

19990621_rehearing_motion.html

Government's motion for reconsideration of the decision, either by the same panel or by larger en banc review panel. An expected delaying tactic.

19990506_circuit_decision.html

Decision by the 9th Circuit Court of Appeals, affirming Prof. Bernstein's right to publish encryption source code, and striking down the Export Administration Regulations as unconstitutional.

971208_unofficial.transcript

Unofficial transcript of the hearing in front of a panel of three judges at the 9th Circuit Court of Appeals.

971120_appeal_reply.images/index.html

Government's reply to our main brief, supporting their arguments from their appeal brief.

971110_bernstein.appeal

Prof. Bernstein (Appellee)'s main brief in the 9th Circuit appeal of the District Court ruling. Argues that the lower court applied the proper tests, that the crypto export regulations are an unconstitutional prior restraint, that they are also unconstitutional under several other First Amendment tests, and that the District Court's relief was appropriate.

971110_aaas.amicus

Amicus brief of the American Assoc. for the Advancement of Science. Provides several more reasons why the crypto export controls are unconsitutional, including violation of the 5th and 14th Amendments and of the Constitutution's "penumbral" privacy guarantees. Very interesting additional arguments that examine not only the rights of the plaintiff, but of his audience, of the scientific community, and and of all potential recipients of plaintiff's encryption software.

971110_lawprofs.amicus

Amicus brief of Prof. Garrett Epps and other law professors and organizations, arguing that the crypto export controls are an unconstitutional prior restraint of publication, unsavable by the government's attempts to distinguish between one language and another, or to regulate on the basis of the functionality of the speech at issue (computer program code).

971110_epic_amicus.html

Amicus brief filed by EPIC and a number of civil liberties organizations, Internet and computer related organizations, and cryptographers (HTML version)

971110_epic.amicus

Amicus brief filed by EPIC and a number of civil liberties organizations, Internet and computer related organizations, and cryptographers (text version)

971110_jefferson_center.amicus

Amicus brief filed by the Thomas Jefferson Center for Freedom of Expression.

971110_rsa_ncsa_amicus.html

Amicus brief filed by RSA Data Security, the National Computer Security Association, former government intelligence management, and others. Argues that the export controls actually undermine the national security by restricting domestic computer security, domestic electronic commerce, and by encouraging good crypto software to be built outside the United States. (HTML version)

971110_rsa_ncsa.amicus

Amicus brief filed by RSA Data Security, the National Computer Security Association, former government intelligence management, and others. Argues that the export controls actually undermine the national security by restricting domestic computer security, domestic electronic commerce, and by encouraging good crypto software to be built outside the United States. (ASCII text version)

971016_appeal_brief.images/index.html

Government brief to 9th Circuit Court of Appeals, arguing that the lower court's opinion was wrong, and that the relief it granted was too broad.

970922_emerg_stay.order

9th Cir. order granting, without explanation, govt. motion for a stay of all injunctive relief granted by the Dist. Court. Order also provides for a rapidly expedited hearing, with initial briefs due Oct. and Nov., and hearing set for Dec., 1997.

970922_emerg_stay.motion

Brief govt. motion for leave to provide the court a reply brief rebutting Bernstein's opposition.

970922_emerg_stay_reply.images/index.html

Govt's reply brief challenging appellee's opposition to the stay the govt. asked for.

970917_emerg_stay.opposition

Bernstein's brief opposing the govt. emergency motion for stay-pending-appeal of all relief granted by the District Court. Brief clearly shows that govt. has introduced no new arguments in its favor, and cannot meet the tests required for such a stay (among them a clear showing of liklihood of success on the merits of their appeal, and demonstrable irreparable harm if they don't get the say. The brief also takes the govt. to task for daring to suggest that because the govt. has censored Bernstein for 5 years it won't hurt him to be censored a little longer pending appeal.

970917_emerg_stay_opposition.exhibits/index.html

Exhibits submitted with the Sept. 17 opposition to emergency motion for stay.

970910_emerg_stay_motion.images/index.html

Government emergency motion to the 9th Circuit Court of Appeals to have even Judge Patel's narrowly stayed injunction completely stayed. They are trying to convince the Appeals court that the national security will be damaged if two pages of Snuffle code are posted to the Web.

970910_crowell_decl.images/index.html

Declaration of William P. Crowell, Deputy Director of NSA, supporting the emergency stay motion.

970910_reinsch_decl.images/index.html

Declaration of William A. Reinsch, Under Secretary for Export Administration, supporting the emergency stay motion.

970909_stay_order.images/index.html

Judge Patel's stay of her injunction, which lets Prof. Bernstein post Snuffle 5.0 and updates to it, but no other programs. This is in effect until the appeal of the case is finished.

970909_appeal_notice.images/index.html

Government's Notice of Appeal to federal US Court of Appeals of the 9th Circuit. Expected, and unsurprising in its details.

970828_conference.minutes

Brief minutes of the phone conference held among Judge Patel, Cindy Cohn, and Anthony Coppolino, regarding the government's emergency request for a stay.

970828_stay.opposition

Bernstein's opposition to the government motion for a stay in the case.

970827_stay.motion

Government's motion for a stay on the Aug. 25, 1997 injunction.

970827_stay_motion.images/index.html

Government's motion for a stay on the Aug. 25, 1997 injunction (page images).

970825_decision.html

Judge Patel's decision that the Export Administration Regulations are unconstitutional (hypertext).

970825.decision

Judge Patel's decision that the Export Administration Regulations are unconstitutional (plain text).

970825_decision.images/index.html

Judge Patel's decision that the Export Administration Regulations are unconstitutional (page images).

970701_reno.notice

Notice of Related Decision mentioning the brand new Supreme Court decision in Reno v. ACLU, which has some parallels to Prof. Bernstein's case.

970618_bernstein.declaration

short declaration in which Prof. Bernstein demonstrates conclusively that source code is communicative as well as functional, by supplying a short COBOL program that is easily readable and understandable by a person, as well as a computer.

970306_amended.stipulation

Amendment to the 970113 stipulation, to add a "UIC dorm" network number to the set of networks permitted to access Prof. Bernstein's crypto class Web site.

970127_reconsideration.opposition

Bernstein's opposition to the Government motion which asks the judge to reconsider her decision that the State Dept. crypto export controls are unconstitutional.

970113_suppl.proposal

Proposed order accepting the supplemental complaint.

970113_suppl_filing.memo

Brief argument about why we should be permitted to amend the complaint.

970113.stipulation

Stipulation between Bernstein and Secretary of Commerce that he will not be harmed for teaching cryptography to his students in Spring 1997, nor for giving them software (including source code), nor for running a software distribution site restricted to access from the UIC computer network.

970107_supplemental.complaint

Addition to our original complaint, adding the Administration's new Commerce Department crypto export controls to the list of challenged laws and regulations.

961230.letter

Letter from Bernstein's counsel asking the government to stipulate to not enforcing the Commerce Department regulations until they have been reviewed by the court for Constitutionality.

961230_proposed.stipulation

The stipulation proposed in letter from Bernstein's counsel asking the government to stipulate to not enforcing the Commerce Department regulations until they have been reviewed by the court for Constitutionality.

961206.decision

Judge Patel's decision overturning parts of the Arms Export Control Act and International Traffic in Arms Regulations as unconstitutional.

961004_prelim_inj.memo

Our legal arguments that a preliminary injunction should stop the Defendants from using the export laws against Prof. Bernstein or his students for a class on cryptography. (25 pages)

961004_prelim_inj.motion

The brief motion for a preliminary injunction preventing the government from enforcing the export laws against Dan or his students if he teaches a crypto class. STILL MISSING are several other declarations.

961004_prelim_inj_order.proposal

The "proposed order" which, if signed by the judge, would put the preliminary injunction into effect.

961004_bernstein.declaration

Dan Bernstein's declaration regarding the course he plans to teach.

961004_prior.declaration

Robert Prior's declaration explaining the whole process by which the PGP Source Code book was created, published, and submitted for export control consideration.

960920.transcript

The official transcript of the hearing which occured before Judge Marilyn Hall Patel on October 20, 1996, regarding the cross-motions for summary judgement.

960911_joint_facts.statement

Joint Statement of Undisputed Facts, prepared by both sides in the case.

960830_plaintiff.opposition

Bernstein's opposition to the government motion for summary judgement.

960726_filing/index.html

Bernstein's motion for partial summary judgment, arguing that the ITAR and AECA are unconstitutional because they are a prior restraint on protected publication and speech, that they are vague, and that they are overbroad. Also includes many interesting declarations submitted to the court by various people around the community about scientific communication, crypto, and the export laws.

960726_govt.motion

Government's motion for summary judgement (arguing that their actions are all legal). Filed at the same time as our motion for partial summary judgement. It also included two declarations, which we have not scanned in (the gov't won't provide them machine- readable; we have to scan or type in all the gov't docs that you see here.)

960415.decision

Apr. 15, 1996 court decision denying the govt. motion to dismiss, in Bernstein v. State Dept. This is a very important decision, as it establishes caselaw precedent for the First Amendment protection of software. The court also takes the government to task for restricting the paper publication of an encryption algorithm for over two years. This is not the final decision in the case, just the denial of the dismissal motion, and judge's commentary.

951020_hearing.transcript

The court reporter's transcript of the oral arguments made at the hearing on the government's motion to dismiss the Bernstein case for lack of jurisdiction (a motion that was denied).

951005_dismiss.reply

Reply Memorandum of Points and Authorities in further support of Defendants' Motion to Dismiss. The government's rebuttal to Bernstein's opposition to its motion to dismiss.

950922_cohn.declaration

Declaration of Cindy Cohn, plaintiff's chief legal counsel in the Bernstein v. State Dept. case, detailing the reasons why it would be premature to dismiss the case at this time, and the documents and testimony that she would like to bring to the court before a decision is reached.

950922_evidence.objection

Bernstein's objection to the introduction of evidence (declarations of William Lowell and Louis Giles) at this stage of the proceedings, when only the question of jurisdiction is supposed to be decided. In deciding jurisdiction, the truth of the allegations is assumed unless actual facts are disputed.

950922_oppose.motion

Bernstein's motion in opposition to the State Department motion to dismiss the case.

950922_judicial_notice.request

Bernstein's request that the court take judicial notice of the memos from the Justice Department's Office of Legal Counsel (the Exhibits to Lee Tien declaration).

950922_tien.declaration

Declaration of Lee Tien, an attorney on Bernstein's legal team, declaring that the several memos enclosed were obtained under the Freedom of Information Act from the Department of Justice and are true copies. These memos describe the Justice Department's stance that the export laws are unconstitutional.

950922_tien.exhibits/index.html

Justice Department memos from 1984 that describe why the crypto export laws are unconstitutional, and demonstrate that the government has been on notice of this for more than a decade.

950814_dismiss.motion

The government's attempt to have the case dismissed for lack of jurisdiction.

9505xx.answer

The government's original response to Bernstein's lawsuit.

950221.exhibits/index.html

The exhibit documents filed with the original complaint.

950221.complaint

The complaint (charges) filed by EFF and Dan Bernstein against the State Dept. et al., seeking a ruling against the US ITAR export restrictions on encryption, as unconstitutional restraint of free speech.

950221_seal.order

Judge's order sealing the crypto code case exhibits, since ITAR forbids our distributing them.

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Links to Related Off-Site Resources

Website of Bernstein's legal counsel, the law firm McGlashan & Sarrail

Ninth Circuit Opinions (decisions) from the Office of the Circuit Executive