From: Dave Banisar <Banisar@epic.org>
Date: Wed, 22 Jan 1997 16:56:11 -0800 (PST)
To: dccp@eff.org
Subject: Decision in Karn Case
Message-ID: <199701230056.QAA02134@toad.com>
MIME-Version: 1.0
Content-Type: text/plain


We just received this today. This is in part good news that the appeals
court did not just affirm the lower court decision but on the other hand,
it doesn't give much guidance to the court.

A html version is up at:
http://www.epic.org/crypto/export_controls/karn_decision_1_97.html

Dave



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             UNITED STATES COURT OF APPEALS

          FOR THE DISTRICT OF COLUMBIA CIRCUIT


No. 96-5121

Philip R. Karn, Jr.
   v.
U.S. Department of State

        On Appeal from the United States District Court
                 for the District of Columbia

    Before: Williams, Ginsburg, and Rogers, Circuit Judges

                     January 21, 1997

                         JUDGMENT

     In light of the recent Executive Order transferring
regulatory authority of non-military cryptographic computer
source code to the Commerce Department, and the Commerce
Department's promulgation of a new regulation under the authority
of the International Emergency Economic Powers Act, 50 U.S.C. secs.
1701 et seq., we remand this case to the district court to
consider the reviewability of and, if appropriate, the merits of
appellant's claim under the Administrative Procedure Act.
Because "basic tenets of judicial restraint and separation of
powers call upon [the court] first to consider alternative
grounds for resolution" when the court is asked to answer a
question involving the Constitution of the United States,
Lamprecht v. FCC, 958 F.2d 382, 389-90 (D.C. Cir. 1992), we
do not reach the constitutional issues raised by this appeal.

     The clerk is directed to withhold issuance of the mandate
herein until seven days after disposition of any timely petition
for rehearing. See D.C. Cir. Rule 41(a)(2). This instruction to
the Clerk is without prejudice to the right of any party at any
time to move for expedited issuance of the mandate for a good cause
shown.


                               Per Curiam
                               FOR THE COURT:

                                 /s/
                               Mark J. Langer, Clerk


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