Bernstein v. Dept of Justice

Tags: 1990s Amendment I Bernstein Case Law Crypto Wars Export Controls

Authors: Fletcher, Betty

Published: May 1999

URL: https://caselaw.findlaw.com/us-9th-circuit/1317290.html

Abstract: As a mathematics and cryptography PhD student at Berkeley, Daniel Bernstein developed an encryption method he called “Snuffle.” Bernstein sued for declaratory judgment upon being informed by the State Department that his paper, program, and its instructions required licensing as a munition under the International Traffic in Arms Regulations, as well as for an injunction prohibitng enforcement under ITAR and the Arms Export Control Regulations on First Amendment grounds. The case progressed through three district court decisions and two Ninth Circuit decisions, and ultimately held that code is speech for First Amendment purposes.

In its first opinion the Ninth Circuit held that software source code is speech, protected by the First Amendment. It also held that the regulations at issue preventing publication of the code were unconstitutional.

The opinion was withdrawn en banc September 30, 1999 (192 F.3d 1308) pending rehearing. However, before the rehearing the regulations at issue were changed. The case was dismissed without prejudice.