From: Bovine Remailer <haystack@cow.net>
Date: Wed, 25 Sep 1996 07:43:41 +0800
To: cypherpunks@toad.com
Subject: Bernstein hrg in the news
Message-ID: <9609241946.AA21891@cow.net>
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Feds on the Ropes In Suit Challenging Arms Export Law
(Dan Goodin, The Recorder (SF), 9/23/96, p.1)

	A professor who says federal restrictions on the export of encryption
software violate his right to free speech seemed to get a sympathetic
hearing from a federal judge on Friday.

	In a closely watched case challenging export restrictions on encryption
software, U.S. District Judge Marilyn Hall Patel did not rule on summary
judgment motions. But she appeared impatient when a U.S. Department of
Justice attorney attempted to revive an issue settled months ago in that case.

	Patel handed plaintiff Daniel Bernstein a big victory in April, ruling
that software is protected speech under the First Amendment.

	But the ruling in _Bernstein v. U.S. Department of State_, 95-0582, didn't
deter government attorneys Friday from trying to reargue the point.

	Justice Department trial attorney Anthony Coppolino argued that the
government controls on the export of software are not based on the content
of the computer code but rather on its functionality. Therefore, he argued,
the restrictions are not a prior restraint of speech protected under the
Constitution.

	Patel replied: "You'll get a chance to argue that in another courtroom."

	Cindy Cohn, an associate with San Mateo's McGlashan & Sarrail representing
Bernstein, said she was pleased with the way the hearing appeared to go.

	"My impression is the fact that [Patel] was asking more questions of
[Coppolino] than me meant that he was the one who needed to convince her,"
Cohn said.

	Coppolino declined to comment.

	LICENSE TO 'SNUFFLE'

	Filed in February 1995, the suit challenges provisions of the
International Traffic in Arms Regulation Act, which classifies encryption
programs as "munitions" and subjects them to strict export controls.

	In October 1993, the U.S. State Department told Bernstein he would need an
arms export license to post his "Snuffle" encryption program and
accompanying documentation to an Internet discussion group. He subsequently
filed suit seeking to have the requirement declared unconstitutional.

	After Patel's April ruling, the case now turns on whether restrictions on
the export of such software and accompanying "technical data" amount to
prior restraint, which can only be exercised extremely narrowly.

	High-tech companies are closely watching the case, having complained
bitterly for years that the law has crippled their ability to compete in
the global software market. Particularly in the burgeoning arena of
Internet and network-related software products, encryption features are
considered essential to protect sensitive data transmissions from
unauthorized access.

	Legislative attempts at relaxing export laws so far have been
unsuccessful. A bill now before the Senate Commerce Committee has received
stiff opposition from the Clinton administration, and even its supporters
say it is unlikely the bill will pass this term.

	But Stanton McCandlish, a spokesman for the Electronic Frontier Foundation
- a group that advocates extending civil liberties into digital media such
as the Internet - said the so-called Pro-CODE bill sponsored by Sen. Conrad
Burns, R-Mont, could be made moot by Bernstein's case.

	"If we get the ruling we're looking for," he said, "and it's affirmed at
the Supreme Court level, which is pretty likely, the Pro-CODE bill is
probably not needed at all."

(retyping by NLA, newspaper liberation army.)