Bernstein v. US Dept. of State (Bernstein II)

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

Authors: Patel, Marilyn Hall

Published: December 1996

URL: https://law.justia.com/cases/federal/district-courts/FSupp/945/1279/1457799/

Abstract: In Bernstein v U.S. Department of State, the US District Court for the Northern District of California held that licensing requirements for speech relating to encryption of computer software constituted unlawful prior restraint. Daniel Bernstein, a mathematician, challenged restrictions on the exportation of cryptography from the United States. He sought declaratory and injunctive relief, facially and as-applied, against enforcement of the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR). At-issue was whether the licensing requirements for the export of cryptographic devices and software in ITAR, and the export control over related technical data, constitute an impermissible infringement on speech in violation of the First Amendment. The court reasoned that because the ITAR licensing scheme fails to provide for a time limit on the licensing decision, prompt judicial review, and a duty on the part of the ODTC to go to court and defend a denial of a license, it is an unconstitutional prior restraint in violation of the First Amendment.