10 May 1999
(Export controls remain in force, agencies warn) (760) Washington -- The Commerce and Justice departments have issued statements warning exporters that controls on encryption software exports remain in force at least until federal U.S. courts take further action. At issue is the government's prohibiting University of Illinois Professor Daniel Bernstein from publishing on the Internet an encryption program called Snuffle that he developed while an undergraduate at the University of California. The State Department had ruled that making the program available on the Internet required the same kind of export license as is issued for a munition. A U.S. Court of Appeals panel in San Francisco ruled 2-1 May 6 that the export controls violated Bernstein's First Amendment right to freedom of speech. A government appeal to the full Court of Appeals and perhaps eventually the Supreme Court is considered likely. The Commerce Department's Bureau of Export Administration (BXA) and Justice Department said in their statements that encryption export controls remain in force until the Court of Appeals issues an order in 45 days or more. They said the controls will remain in force longer if the government appeals the ruling. Following is the text of the BXA statement: (begin text) 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. (end text) Following is the text of the Justice Department statement: (begin text) Department of Justice Statement On Ninth Circuit Court of Appeals Decision in Encryption 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 Circuit's decision will not take 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 issued earlier by the district court and the Ninth Circuit, and the stays of the injunction remain in effect until the mandate issues. Accordingly, 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. (end text)