The Bernstein Cryptography Case Is Dismissed

    Date17 Oct 2003
    CategoryCryptography
    3291
    Posted ByAnthony Pell
    This inconclusive ending of the Bernstein case is a consequence of the government's policy in cases where there are first amendment challenges to restrictions on the publication of software to claim that they have no intention of enforcing the law as . . . This inconclusive ending of the Bernstein case is a consequence of the government's policy in cases where there are first amendment challenges to restrictions on the publication of software to claim that they have no intention of enforcing the law as it is written and thus getting the cases dismissed as moot.

    The end result is that, though Bernstein had originally won in both the District Court and the 9th Circuit and I lost my later-filed case involving much the same issues---Junger v. Daley---in the federal District Court for the Northern District of Ohio, it is the 6th Circuit Court of Appeal's decision reversing the District Court's decision in Junger v. Daley that is the leading case holding that computer programs are speech that is protected by the First Amendment. In the Bernstein case, when the government amended the regulations forbidding the publication of computer programs, the 9th Circuit Court of Appeals withdrew its earlier opinion in Bernstein's favor and remanded the case to the district court, where the government claimed that they would not enforce the restrictions on cryptography against Dan Bernstein. In my case, on the other hand, the 6th Circuit Court of Appeals reversed the District Court's holding that the First Amendment does protect those who would publish software and then remanded the case to the District Court for further proceedings. At that point, rather than risking our victory in the 6th Circuit, we settled my case, even though the new regulations were---and are---constitutionally questionable.

    Although my case is now the leading case holding that publishing software is protected by the First Amendment, I do not believe that we would have had our success without the efforts of Dan Bernstein and his lawyers from the Electronic Freedom Foundation.

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