Bernstein v. U.S. Dept. of Justice
| Decision Date | 06 May 1999 |
| Docket Number | No. 97-16686,97-16686 |
| Citation | 176 F.3d 1132 |
| Parties | 99 Cal. Daily Op. Serv. 3283, 1999 Daily Journal D.A.R. 4254 Daniel J. BERNSTEIN, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE; United States Department of Commerce; Department of State; United States Department of Defense; United States Arms Control and Disarmanent Agency; National Security Agency; United States Department of Energy; Central Intelligence Agency; Madeline E. Albright, United States Secretary of State; William M. Daley, United States Secretary of Commerce; William Cohen, United States Secretary of Defense; Kenneth A. Minihan, Director, United States National Security Agency; John B. Holum, Director, United States Arms Control and Disarmanent Agency; William G. Robinson; Gary M. Oncale; Ambassador Michael Newlin; Charles Ray; Mark Koro; Greg Stark; Does 1-100, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Scott R. McIntosh (argued), Douglas N. Letter, United States Department of Justice, Washington, D.C., for the defendants-appellants.
Cindy A. Cohn (argued), McGlashan & Sarrail, San Mateo, California; and Lee Tien, Berkeley, California; James Wheaton, Elizabeth Pritzker, First Amendment Project, Oakland, California; M. Edward Ross, Steefel, Levitt & Weiss, San Francisco, California; Robert Corn-Revere, Hogan & Hartson, LLP, Washington, D.C.; Dean Morehous, Sheri A. Byrne, Ivan K. Fong, Covington & Burling, Washington, DC, for amicus curiae Electronic Privacy Information Center; American Civil Liberties Union of Northern California; Center for Democracy and Technology; Computer Professionals for Social Responsibility; Economic Strategy Institute; Free Congress Research and Education Foundation; Human Rights Watch; Independence Institute; International Information System Security Certification Consortium; Internet Mail Consortium; Internet Security; National Association of Manufacturers; Privacy International; U.S. Public Policy Committee of the Association for Computing; Dr. Whitfield Diffie; Dr. Peter Neumann; and Dr. Ronald Rivest.
Thelan, Reid & Priest, San Francisco, California; Sheri Steele, The Electronic Frontier Foundation, San Francisco, California, for the plaintiff-appellee.
Garrett Epps, University of Oregon School of Law, Eugene, Oregon, for amicus curiae Silicon Valley Software Industry Coalition; Professor Keith Aoki; Professor Margreth Barrett; Professor James Boyle; Professor Garrett Epps; Professor Peter Jaszi; Professor David Lange; and Professor Eugene Volokh.
Brian Conboy, Wilkie Farr & Gallagher, Washington, DC, for amicus curiae Maynard Anderson; D. James Bidzos; National Computer Security Association; Mark Rasch; RSA Data Security, Inc.; Dr. Eugene Spafford; and Dr. Ross Stapleton-Gray.
J. Joshua Wheeler, Charlottesville, Virginia, for amicus curiae Thomas Jefferson Center for Protection of Free Expression.
Richard D. Marks, Vinson & Elkins, Washington, DC, for amicus curiae Association for the Advancement of Science.
Appeal from the United States District Court for the Northern District of California; Marilyn Hall Patel, District Judge, Presiding. D.C. No. CV-97-00582 MHP.
Before: BRIGHT, * FLETCHER, and T.G. NELSON, Circuit Judges.
Opinion by Judge FLETCHER; Concurrence by Judge BRIGHT; Dissent by Judge T.G. NELSON.
The government defendants appeal the grant of summary judgment to the plaintiff, Professor Daniel J. Bernstein ("Bernstein"), enjoining the enforcement of certain Export Administration Regulations ("EAR") that limit Bernstein's ability to distribute encryption software. We find that the EAR regulations (1) operate as a prepublication licensing scheme that burdens scientific expression, (2) vest boundless discretion in government officials, and (3) lack adequate procedural safeguards. Consequently, we hold that the challenged regulations constitute a prior restraint on speech that offends the First Amendment. Although we employ a somewhat narrower rationale than did the district court, its judgment is accordingly affirmed.
Bernstein is currently a professor in the Department of Mathematics, Statistics, and Computer Science at the University of Illinois at Chicago. As a doctoral candidate at the University of California, Berkeley, he developed an encryption method--"a zero-delay private-key stream encryptor based upon a one-way hash function" 1-- Seeking to present his work on Snuffle within the academic and scientific communities, Bernstein asked the State Department whether he needed a license to publish Snuffle in any of its various forms. The State Department responded that Snuffle was a munition under the International Traffic in Arms Regulations ("ITAR"), and that Bernstein would need a license to "export" the Paper, the Source Code, or the Instructions. 2 There followed a protracted and unproductive series of letter communications between Bernstein and the government, wherein Bernstein unsuccessfully attempted to determine the scope and application of the export regulations to Snuffle. 3
that he dubbed "Snuffle." Bernstein described his method in two ways: in a paper containing analysis and mathematical equations (the "Paper") and in two computer programs written in "C," a high-level computer programming language ("Source Code"). Bernstein later wrote a set of instructions in English (the "Instructions") explaining how to program a computer to encrypt and decrypt data utilizing a one-way hash function, essentially translating verbatim his Source Code into prose form
Bernstein ultimately filed this action, challenging the constitutionality of the ITAR regulations. The district court found that the Source Code was speech protected by the First Amendment, see Bernstein v. U.S. Department of State, 922 F.Supp. 1426 (N.D.Cal.1996) ("Bernstein I" ), and subsequently granted summary judgment to Bernstein on his First Amendment claims, holding the challenged ITAR regulations facially invalid as a prior restraint on speech, see Bernstein v. U.S. Department of State, 945 F.Supp. 1279 (N.D.Cal.1996) ("Bernstein II" ).
In December 1996, President Clinton shifted licensing authority for nonmilitary encryption commodities and technologies from the State Department to the Department of Commerce. See Exec. Order No. 13,026, 61 Fed.Reg. 58,767 (1996). The Department of Commerce then promulgated regulations under the EAR to govern the export of encryption technology, regulations administered by the Bureau of Export Administration ("BXA"). See 61 Fed.Reg. 68,572 (1996) (codified at 15 C.F.R. Pts. 730-74). Bernstein subsequently amended his complaint to add the Department of Commerce as a defendant, advancing the same constitutional objections as he had against the State Department. The district court, following the rationale of its earlier Bernstein opinions, once again granted summary judgment in favor of Bernstein, finding the new EAR regulations facially invalid as a prior restraint on speech. See Bernstein v. U.S. Department of State, 974 F.Supp. 1288 (N.D.Cal.1997) ("Bernstein III "). The district court enjoined the Commerce Department from future enforcement of the invalidated provisions, an injunction that has been stayed pending this appeal.
Cryptography is the science of secret writing, a science that has roots stretching back hundreds, and perhaps thousands, of years. See generally DAVID KAHN, THE CODEBREAKERS (2d ed.1996). For much of Encryption basically involves running a readable message known as "plaintext" through a computer program that translates the message according to an equation or algorithm into unreadable "ciphertext." Decryption is the translation back to plaintext when the message is received by someone with an appropriate "key."
its history, cryptography has been the jealously guarded province of governments and militaries. In the past twenty years, however, the science has blossomed in the civilian sphere, driven on the one hand by dramatic theoretical innovations within the field, and on the other by the needs of modern communication and information technologies. As a result, cryptography has become a dynamic academic discipline within applied mathematics. It is the cryptographer's primary task to find secure methods to encrypt messages, making them unintelligible to all except the intended recipients:
Bernstein III, 974 F.Supp. at 1292. The applications of encryption, however, are not limited to ensuring secrecy; encryption can also be employed to ensure data integrity, authenticate users, and facilitate nonrepudiation (e.g., linking a specific message to a specific sender). See id.
It is, of course, encryption's secrecy applications that concern the government. The interception and deciphering of foreign communications has long played an important part in our nation's national security efforts. In the words of a high-ranking State Department official:
Policies concerning the export control of cryptographic products are based on the fact that the proliferation of such products will make it easier for foreign intelligence targets to deny the United States Government access to information vital to national security interests. Cryptographic products and software have military and intelligence applications. As demonstrated throughout history, encryption has been used to conceal foreign military communications, on the battlefield, aboard ships and submarines, or in other military settings. Encryption is also used to conceal other foreign communications that have foreign policy and national security significance for the United States. For example, encryption can be used to conceal communications of terrorists, drug smugglers, or others intent on taking hostile action against U.S. facilities, personnel, or security interests.
Lowell Decl. at 4 (...
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