Bernstein v. United States Department of Justice
99 Cal. Daily Op. Serv. 3283, 1999 D.A.R. 4254, 176 F.3d 1132 (1999)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A pre-publication licensing scheme for the export of encryption source code constitutes an unconstitutional prior restraint on speech if it vests boundless discretion in government officials and lacks adequate procedural safeguards, such as prompt decisions and judicial review.
Facts:
- Daniel J. Bernstein, a doctoral candidate at U.C. Berkeley, developed an encryption method he called 'Snuffle'.
- Bernstein described his method in three forms: a scientific paper, computer programs written in 'C' source code, and plain English instructions explaining the source code.
- Wishing to present his work to the academic and scientific communities, Bernstein inquired with the State Department about licensing requirements for publishing Snuffle.
- The State Department informed Bernstein that his encryption method was a 'munition' under the International Traffic in Arms Regulations (ITAR) and that he would need a license to 'export' the source code or instructions.
- Subsequently, regulatory authority shifted to the Department of Commerce, which promulgated the Export Administration Regulations (EAR).
- The EAR required a pre-publication license for the 'export' of encryption software, which was broadly defined to include making it available on the internet.
- The regulations gave officials discretion to deny a license if the export was not 'consistent with U.S. national security and foreign policy interests.'
- The EAR provided no firm time limit for a final decision on a license application and explicitly precluded judicial review of administrative decisions.
Procedural Posture:
- Bernstein sued the U.S. Department of State in the U.S. District Court for the Northern District of California, challenging the constitutionality of the ITAR regulations.
- The district court first held that source code was speech protected by the First Amendment.
- The district court then granted summary judgment to Bernstein, ruling the ITAR regulations were a facially unconstitutional prior restraint.
- After regulatory authority was transferred to the Department of Commerce, which issued new EAR regulations, Bernstein amended his complaint.
- The district court again granted summary judgment for Bernstein, finding the new EAR regulations were also a facially unconstitutional prior restraint and enjoining their enforcement.
- The government defendants appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Do the Export Administration Regulations, which require a pre-publication license to export encryption source code, constitute an unconstitutional prior restraint on speech in violation of the First Amendment?
Opinions:
Majority - Fletcher, J.
Yes, the challenged regulations constitute a prior restraint on speech that offends the First Amendment. Encryption source code is an expressive means for communicating scientific and academic ideas, akin to mathematical equations, and is therefore protected speech. The EAR licensing scheme operates as a prior restraint because it requires speakers to obtain government permission before publishing. This scheme is unconstitutional because it vests 'boundless discretion' in government officials, allowing them to deny licenses based on the vague standard of 'national security and foreign policy interests.' Furthermore, the regulations lack the minimum procedural safeguards required by Freedman v. Maryland, as they fail to impose a specific time limit for final licensing decisions and completely foreclose the possibility of judicial review. The combination of unbridled discretion and inadequate procedural protections creates an intolerable risk of censorship, rendering the regulations facially invalid.
Dissenting - T.G. Nelson, J.
No, Bernstein was not entitled to bring a facial First Amendment challenge to the regulations. Encryption source code is primarily functional rather than expressive; it is a tool used to build an encryption machine, making it more akin to conduct than pure speech. Because the export of source code is not 'conduct commonly associated with expression,' a facial challenge as a prior restraint is inappropriate. The EAR are laws of general application directed at the functional capacity of encryption technology, not specifically aimed at suppressing expression. Therefore, the district court's injunction should be vacated, and the case remanded for consideration of Bernstein's 'as-applied' challenge, which would analyze the constitutionality of the regulations as they were specifically applied to his actions.
Concurring - Bright, J.
Yes, the regulations are unconstitutional. I join the majority because the speech aspects of encryption source code, which facilitate communication between computer programmers, are significant. However, I also recognize the validity of the dissent's view that source code has a functional purpose not protected by the First Amendment. The importance and complexity of this issue suggest that it may be appropriate for review by the United States Supreme Court.
Analysis:
This case was a landmark decision in establishing that computer source code is a form of speech protected by the First Amendment. By classifying code as expression rather than merely functional conduct, the court extended significant constitutional protection to scientific and academic communication in the digital era. The ruling firmly applied the stringent prior restraint doctrine to national security regulations, signaling that even compelling government interests do not excuse the lack of clear standards and procedural safeguards in licensing schemes that affect speech. This precedent has had a lasting impact on legal debates concerning the regulation of technology, online communication, and the balance between free expression and national security.
