Dec 8th SF C'punks meeting: export controls on appeal

[John Gilmore <gnu@toad.com>]

We're having yet another "Cypherpunks Dress-Up Day" on Monday,
December 8th.  Meet at the Federal Appeals Court in San Francisco, at
7th and Mission Streets (new location!).  The hearings will start at
9AM, but several cases will precede ours, so we're guessing we'll
start about 10:30.  Dress sharp: TV crews, your fellow cypherpunks,
and three esteemed judges will all be checking out your duds.  Park at
the Fifth & Mission garage, or take transit to 7th & Market and walk a
block.

After the hearing, EFF will have a press conference down the block at
the Best Western Motel, 121 7th Street.  This will feature commentary
from the EFF legal team and local First Ammendment scholars,
explaining the significance of what happened in the hearings, and
answering questions.

Then we'll have a room reserved for lunch a few blocks away, at
Annabelle's Bar & Bistro, 68 Fourth Street (between Market & Mission).
We expect to get there by about 1:30 pm.  It's a flat rate of $14 for
lunch, and we can probably send splinter groups into the main
restaurant if we overfill the room.  The legal team will be there, as
well as some of the EFF Board, and some potential donors to the case.
(Want to be one?)

The original Bernstein case is over.  We won it.  The government
appealed that decision, and is asking the 9th Circuit Court of Appeals
to overturn Judge Patel's rulings as erroneous.  Judges Myron
H. Bright, Betty B. Fletcher, and Thomas Nelson have been reading the
government's appeal, our response, and the government's reply.
They'll hear twenty minutes from each side, and ask whatever questions
they like.  Then (some days or weeks later) they'll publish their
decision.

The main issue before the Court is whether the export control laws and
regulations violate the First Amendment.  The Government is arguing
that if their *intent* is to regulate something other than
publication, they only need to show that the rules are "narrowly
tailored" to serve a "substantial government interest."  The
government argues that if it meets that test, it does not have to
worry about whether the regulations are a "prior restraint" on
publication.  Bernstein is arguing that what matters is whether the
government *actually* regulates publication (no matter what its
supposed "intent"), and that the government's export control regime
is an unconstitutional prior restraint on Bernstein's speech.

Check out the fancy new courtroom, which your taxes helped to build!
Proceed with us up the judicial hierarchy!  Shake hands with the
intrepid lawyers 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!

As background, Dan Bernstein, ex-grad-student from UC Berkeley, sued
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.  The judge decided that their
regulations are not only unconstitutional as applied to Dan, but in
general.  We're eating our way up the judicial food chain to see if
the ruling is confirmed at each level of expertise.  Full background
and details on the case, including our legal papers (and many of the
government's as well), are 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/FBI 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.  We
have won three times and we're getting closer, though it's likely
to require Supreme Court review before the issue is finally settled.

Please make a positive impression on the judges.  Shine yer sandals
and iron your t-shirts, if you can't borrow something from your
banker.  Break out that fedora, and those elegant but conservative
dresses.  Show the judges -- by showing up -- that this case matters
to people like you -- more than just to a professor and some
bureaucrats.  Demonstrate that their decision will make a difference
to your society and your profession.  That the public and the press
are watching, and really do care that how well they handle the issue.

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 (except by pre-arrangement with the court).  You can
take notes if you like.  I haven't run the gauntlet of the guards
there yet, but I expect similar suspicious activities (small innocuous
metal objects checked before you can enter).

The only thing standing between today and the end of the crypto export
controls is us convincing about ten people that we're on the right
track.  Come help woo over three of them.

	John Gilmore