Bernstein's Brief Requesting Remand to Dist. Court,

in Bernstein v. DoJ (Mar. 3, 2000)

Law Offices of
McGlashan & Sarrail
Professional Corporation

177 Bovet Road, Sixth Floor
San Mateo, California 94402
(650) 341-2585
FAX (650) 341-1395
www.mcglashan.com

Ms. Cathy Catterson
Clerk, United States Court of Appeals
  for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 941119-3939

Re: Bernstein v. Department of Justice
Case No. 97-16686
Please circulate to Justices B. Fletcher, T. Nelson and M. Bright

Dear Ms. Catterson:

     We write pursuant to the Order of the Court dated January 31, 2000, modified to extend time for filing on February 7, 2000. The Court has asked us to address the advisability of a remand in light of the issuance of the new interim export regulations relating to encryption software on January 14, 2000. The Court also asked us to address the question of the form of such a remand, if such is ordered.

     Having now had the opportunity to review both the new interim regulations and the Advisory Opinion issued by the Defendants on February 17, 2000, Plaintff believes that a remand to the District Court is appropriate. The amendments make a number of significant changes in the export licensing requirements at issue in this case. These changes appear to impace the legal and factual context of this case. See e.g. Hays v. Concannon 921 F.2d 240 (9^th Cir. 1990) (remand to District Court appropriate when legislation passed to "address problems created by" previous regulations).

     While Plaintiff remains concerned about the Constitutionality and ambiguity of the new interim regulations, and while they do not appear to affect Professor Bernstein's scientific activities, we are continuing to seek clarification from the Defendants and believe that, regardless of the outcome of that process, the questions concerning the new interim regulations should be heard in the District Court in the first instance.

     Plaintiff and Defendants have engaaged in discussions concerning the impact of a remand on the injunctive relief granted by the District Court and upheld by this Court. The injunctive relief was granted by the District Court and subsequently stayed in part by the District Court and in part by this Court pending determination of the appeal of this matter. The injunctive relief ordered as follows:

6) defendants are permanently enjoined from doing or causing to be done the following acts:

a) further and future enforcement, operation or execution of the statutes, regulations, rules, policies and practices declared unconstitutional under this order, including criminal or civil prosecutions with respect to plaintiff or anyone who uses, discusses or publishes, or seeks to use, discuss or publish plaintiff's encryption program or related materials described in paragraph 5^[1] of this order, and

b) threatening, detaining, prosecuting, discouraging or otherwise interfering with plaintiff or any other person described in paragraph 6) above in the excercise of their federal constitutional rights as declared in this order.

Defendants have requested that the injunctive relief be vacated pending further order of the District Court.

     Plaintiff sees no need for this Court to vacate the injunctive relief already granted. First, such action is premature without a briefing on the merits and scope of the relief granted before this Court of the District Court. Second, this request is puzzling, since Defendants have publicly claimed that the regulations no longer restrain Professor Bernstein or others engaged in similar activities. While Plaintiff is seeking further clarifications about this claim, it is difficult to understand why the injunctive relief should be vacated if Defendants no longer intend to enforce their prior regulations against Professor Bernstein and others.

     Nonetheless, in order to accomodate Defendants' concerns, Plaintiff has offered to allow the stays of injunctive relief currently in force to remain in force pending further order of the District Court. Defendants have refused this offer and instead have asked the court to affirmatively vacate the previous injunctive relief.

     There is no basis to grant Defendants this relief at this time. Defendants have choses to revise their regulations. Nothing about this decision, which was made without consultation with the Court of Plaintiff, justifies the affirmative vacating of the District Court's prior issued relief in this action, which relief was upheld by this Court on appeal.

     Accordingly, Plaintiff requests that this case be remanded to the District Court for consideration of the impact on the case of the changes in the export regulations issued on January 14, 2000. To the extent they have any further applicability in light of the new regulations, the says placed by the 9^th Circuit and District Court may remain in effect pending this further review by the District Court.

Footnote

^[1] Paragraph 5 states: "the court declares that the Export Administration Regulations, 15 C.F.R. Pt. 730 et seq. (1997) and all rules, policies and practices promulgated or pursued thereunder insofar as they apply to or require licensing for encryption and decryption software and related devices and technology are in violatio of the First Amendment on the grounds of prior restraint and are, therefore, unconstitutional as discussed above, and shall not be applied to plaintiff's publishing of such items, including scientific papers, algorithms or computer programs."

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                                                Sincerely,

                                                MCGLASHAN & SARRAIL
                                                Professional Corporation

                                                    [signature]    
                                                CINDY A. COHN
                                                Attorneys for Appellee
                                                DANIEL J. BERNSTEIN

CAC:mt

cc: Daniel J. Bernstein

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