From: John Gilmore <gnu@toad.com>
Date: Sat, 7 Jun 1997 11:47:04 +0800
To: gnu@toad.com
Subject: June 18th SF C'punks meeting: export controls on trial
Message-ID: <199706070323.UAA22781@toad.com>
MIME-Version: 1.0
Content-Type: text/plain



We're having yet another "Cypherpunks Dress-Up Day" on Wednesday, June
18th.  Meet at the Federal Building in San Francisco, 450 Golden Gate
Avenue, at 10:15AM, dressin' sharp 'n' actin' cool.  There will also
be a regular 2nd-Saturday c'punks meeting this month (I think it's at
PGP, Inc.)

The Bernstein case is moving toward a close.  Both we and the
government have asked the court to render its final judgement.  We're
asking her to declare both the State Department and Commerce
Department crypto export control schemes unconstitutional, and to
enjoin (order) the government to stop enforcing them.  They're asking
to keep the status quo, and keep full discretion to change it whenever
they want.

The two sides have exchanged their motions, declarations, and
opposition briefs.  The final salvos will occur on the morning of June
18th, as we do "oral argument" in front of Judge Marilyn Hall Patel.
There she'll get to question us before she makes her decision.
In this final round of hearings, we're exploring these issues:

	*  Do the new Commerce Department export controls require people
	   to get a government license before they can speak?
	*  Do these controls impermissibly punish speech after the fact?
	*  Are they too vague to constitutionally regulate speech?
	*  Are they so broadly worded that they unconstitutionally
	   limit speech protected by the First Amendment?
	*  Can Prof. Bernstein challenge the law directly, as it applies
	   to everyone, or only as it applies to him?
	*  Does the President's declaration of an "international
	   emergency" have any effect, when there is no emergency and
	   the only issue is domestic and usual?
	*  Can cryptographic assistance, technology, and software be
	   regulated even though the law only applies to "foreign interest
	   in property" and excludes "communications"?
	*  Can these things be regulated even though the law precludes
	   regulation of "informational materials"?
	*  Should the judge void, or reaffirm, her previous decision
	   against the State Dept. export controls?
	*  Should the judge merely declare the Government's actions
	   unconstitutional, or should she also explicitly order them
	   to stop?
	*  Should she stop the enforcement of the unconstitutional
	   controls against everyone, or only against Prof. Bernstein?

Watch the wheels of justice grind!  Shake hands with the intrepid
lawyers who are working hard to protect our rights!  Banter with NSA
representatives specially flown in for the occasion!  Talk with
journalists who cover crypto!  Be quoted talking about crypto freedom!
Finally meet our reclusive plaintiff, Professor Dan Bernstein!

We will follow the hearing with a nearby press conference, then have
lunch at Max's Opera Plaza, a block away at Van Ness Avenue and Golden
Gate Avenue.  (Alternative lunch ideas are welcome.)

As background, Dan Bernstein, ex-grad-student from UC Berkeley, is
suing the State Department, NSA, Commerce Department, Justice
Department, and other agencies, with help from the EFF.  These
agencies restrained Dan's ability to publish a paper, as well as
source code, for the crypto algorithm that he invented.  We claim that
their procedures, regulations, and laws are not only unconstitutional
as applied to Dan, but in general.  Full background and details on the
case, including all of our legal papers (and many of the government's
as well), are (or will soon be) in the EFF Web archives at:
    http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case.

Like Phil Karn's and Peter Junger's cases, this lawsuit really has the
potential to outlaw the whole NSA crypto export scam.  We intend to
make your right to publish and export crypto software as well-
protected by the courts as your right to publish and export books.  It
will probably take more years, and an eventual Supreme Court decision,
to make it stick.  At the last hearing, we convinced the judge that
the State Department export control laws really are unconstitutional.
Her order restoring our legal right to publish crypto source code was
a wonderful Christmas present.  The government stopped issuing State
Department licenses, but two weeks later started requiring virtually
identical Commerce Department licenses.  We think Judge Patel will see
through this sham, and we hope she'll explicitly order them to cease.

Please make a positive impression on the judge.  Don those
mothball-scented conservative duds.  Show her -- by showing up -- that
this case matters to more people than just the plaintiff and
defendant.  Demonstrate that her decision will make a difference to
society.  That the public and the press are watching, and really do
care that she handles the issue well.

We'll have to be quiet and orderly while we're in the courthouse.
There will be no questions from the audience (that's us), and no
photography there, but the session will be tape-recorded and
transcribed, and you can take notes if you like.  The lobby guards
will want to hold onto guns, "munitions", and even small pocketknives,
before they'll let you go upstairs to the courtrooms.

It's unlikely that Judge Patel will decide then-and-there.  Instead,
we will get some insights into how she is leaning, based on her
questions and comments.  Her written decision will come out some weeks
or months later.  Even if she decides in our favor and issues an
injunction, this isn't the end of the work.  The Government would
almost certainly attempt to have the injunction stayed (stopped) while
they appeal the case to the 9th Circuit Court of Appeals (also here in
San Francisco).  Then there's the appeal itself, in which we'll
probably spend six months to a year defending Judge Patel's decision
in front of a higher court.  Followed by a potential appeal to the
Supreme Court.

The fat lady won't sing on June 18th, but the orchestra will be in
full swing and she'll be waiting in the wings.  Please join us on the
dance floor, in your best regalia.

	John Gilmore

PS: If you can't come, you can still contribute.  Come to EFF's
rock-and-roll fund-raiser at the Fillmore the following night,
Thursday, June 19th, 7PM.  $100/person, including a year of EFF
membership.  Current EFF members can buy two tickets at half price.
There you really *will* get to dance!  (If you're a musician, find a
sponsor, and you can play at the Fillmore.)  Reserve tickets at
http://www.eff.org/fillmore/.  See you there!