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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. [For more info, see http://www.bxa.doc.gov/factsheets/EncryptCase.html ] |
FOR IMMEDIATE RELEASE CIV FRIDAY, MAY 7, 1999 (202) 514-2007 WWW.USDOJ.GOV TDD (202) 514 1888 DEPARTMENT OF JUSTICE STATEMENT ON NINTH CIRCUIT COURT OF APPEALS DECISION IN ENCRYPTION CASE On May 6, a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco issued a decision in a case involving government controls on encryption exports. The Department of Commerce and the Department of Justice are currently reviewing the Ninth Circuit's decision in Daniel Bernstein v. United States Department of Justice and United States Department of Commerce. We are considering possible avenues for further review, including seeking a rehearing of the appeal en banc in the Ninth Circuit. The regulations controlling the export of encryption products currently remain in full effect. The Ninth Circuie effect until the court issues its mandate, which will not occur for at least 45 days. If the government asks the Ninth Circuit to rehear the appeal during that time, the mandate will not issue until after the Ninth Circuit has acted on the government's request. The district court injunction in this case relating to the encryption export regulations has been stayed by orders isued earlier by the district court and the Ninth Circuit, and the stays of the injunction remain in effect until the mandate issues. Accordinaly, all persons who wish to engage in encryption export activity, including the posting or other distribution of encryption software on the Internet, must still comply with the export licensing requirements of the Export Administration Regulations, administered by the U.S. Department of Commerce's Bureau of Export Administration (BXA). Information about the regulations is available at the BXA website at www.bxa.doc.gov. |