Re: Bernstein case decisision (fwd)

[jim bell <jimbell@pacifier.com>]

At 12:00 PM 4/17/96 -0400, Michael Froomkin wrote:
>reposted with permission.
>
>A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
>---------- Forwarded message ----------
>Date: Wed, 17 Apr 1996 05:23:47 -0400
>>From: Mike Godwin <mnemonic@well.com>
>The following summary is from my colleague Shari Steele:
>
>What Judge Patel said.
>First, the judge ruled that Bernstein could bring his case even though the
>Arms Export Control Act specifically precludes judicial review, because what
>we are asking the judge to review (i.e., the constitutionality of the
>statute and its regulations) was not what had been precluded (i.e., the
>government's determination in a particular instance whether or not something
>was exportable).  "With respect to constitutional questions, the judicial
>branch not only possesses the requisite expertise to adjudicate these
>issues, it is also the best and final interpreter of them."
[stuff deleted]
>The judge, therefore, did not throw out any of our claims (the ITAR acts as
>a prior restraint on speech, the ITAR is overbroad, and the ITAR is vague).
>She looked at each of them one by one and determined that each of them had
>merit.
>
>What this decision means.
>Most directly, it means that we can continue on with our lawsuit.  The
>government had brought a motion to dismiss the case, contending that the
>court lacked jurisdiction to hear this matter because it was a matter of
>national security.  The judge struck that down and said that we can go
>forward with our suit.
>
>More indirectly, the judge's ruling sets the stage for us winning at trial.
>She clearly "gets it," and isn't intimidated by the government's use of
>precedential cases that aren't on point.

It looks like this judge is well on her way to throwing out the 
portion of ITAR which deals with software of all kinds, not merely digitized 
source code originally from books.  That's progress, of a sort.

I'm still waiting to see what that "Burns bill" will be all about.  Since 
that bill is supposed to deal directly with the issues this judge has 
already shown sense on, I think that this bill ought to be no less generous 
with computer software exports than an anticipated court decision WRT ITAR 
will be.   

Jim Bell
jimbell@pacifier.com