Bernstein hearing, Nov 8, 10:30AM: injunction against export controls

[John Gilmore <gnu@toad.com>]

Watch the noose tighten around the scrawny neck of the vile crypto
export controls!  Be part of reclaiming your freedom to teach
cryptography and to share your crypto expressions worldwide!  Garb
yourself in a ritual costume used by powerful and famous people!  See
the smooth Justice Department minion who lost the Communications
Decency Act case once again fail to suppress free speech!  Meet
renowned East Coast lawyer Robert Corn-Revere, who helped Phil
Zimmermann face down ITAR prosecution!

Next Friday, 8 November 1996, at 10:30AM we will join forces at Yet
Another Hearing in the case of Dan Bernstein v. Large Government
Agencies.  Convene at the Federal Building in San Francisco, 450
Golden Gate Avenue, in the courtroom of Judge Marilyn Hall Patel.
We'll recognize each other because we'll all be dressed like lawyers.

We will follow the formal proceedings with a group lunch at Max's
Opera Plaza, a block away at Van Ness Avenue and Golden Gate Avenue.
Or come prepared to suggest a walkable alternative eatery more to your
liking, and we can go there instead.

Dan would like to teach a class in cryptography in the upcoming winter
semester, but is afraid that teaching it in the ordinary way (posting
his class materials on the Web, etc) would violate the ITAR.  He
thinks that the ITAR is unconstitutional, and that altering his
ordinary teaching because of a threat of ITAR prosecution is a
"chilling effect" on his constitutional rights of free expression and
academic freedom.

Because it's not clear whether the earlier, broader, motions that we
argued in September will be decided by the time of his class, he has
asked the judge for a "preliminary injunction", a court order in the
following form:

	    2. Defendants are ENJOINED from investigating or
    prosecuting under the Arms Export Control Act (AECA) 22 U.S.C.
    2778 et seq., and the International Traffic in Arms Regulations
    (ITAR), 22 C.F.R. 120 et seq., or any export control statute or
    regulation which would require prepublication licensing of any
    teaching or scientific exchange activities, the following persons:
		    a. Plaintiff, and
		    b. Plaintiff's students, and
		    c. Any person who receives technical data,
    cryptography software or defense services from Plaintiff or his
    students; when such technical data, cryptography software or
    defense services were given or received as part of teaching or
    scientific exchanges during or in preparation for the cryptography
    course to be taught by Plaintiff during the Spring, 1997 semester
    at the University of Illinois at Chicago.
	    3. Defendants are further ENJOINED from requiring
    licensure, approval, registration, reporting or the fulfillment of
    any requirements of the AECA, ITAR or any export control statute
    or regulation which would require prepublication licensing of any
    teaching or scientific exchange activities, the [same] persons...

We tried to get the Government to agree to this without getting the
judge involved, but despite their protests that they don't control
academic activities, they would not agree.  So here we go with another
"Cypherpunks Dress-Up Day" on a Friday morning in San Francisco.

Robert Corn-Revere <rcr@dc1.hhlaw.com> has recently joined the
Bernstein legal team.  He wrote the excellent arguments for this
motion, and will attend the hearing.  Here's a sample of his prose.

	Despite repeated denials that the Government is restricting
    academic freedom, Defendants display a striking enthusiasm for
    defining the limits of "appropriate" academic inquiry and
    communication.  Without directly disputing the fact that computer
    software and source code *is* speech, or that access to such
    software is essential to Prof. Bernstein's course on cryptography,
    or that consultation with other researchers in the field
    (generally via the Internet) is part of the normal academic
    process, or that posting such materials for students on the World
    Wide Web is standard academic practice, Defendants baldly assert
    that such activities have "nothing to do with teaching a class in
    Chicago."  PI Opp at 1.  Indeed Defendants state categorically
    that "the principle of 'academic freedom' does not authorize
    Plaintiff to transmit abroad [cryptographic software], *even if
    his own purpose is merely to convey some theory implicit in the
    software*."  Id. at 22-23 (emphasis added).
...    
	...The Government's argument essentially collapses to the
    proposition that if it is not restricting speech in *all* cases,
    it is not engaging in censorship in *some* cases.  Yet in every
    case with which the Plaintiff is familiar in which cryptographers
    have consulted the Government (or otherwise been brought to the
    Government's attention), the officials who administer the ITAR
    scheme have counseled caution, have initiated investigations and
    have subjected publications to the CJ process.  In this respect,
    Defendants have instituted a kind of "don't ask/don't tell" policy
    for cryptography. ...  If anything, such an informal approach
    causes greater concern, since the law is clear that sporadic or
    discretionary enforcement of a policy that restricts speech
    creates a more significant First Amendment problem than does
    uniform enforcement.
...
	The Government's Opposition borders on the schizophrenic.
    Defendants repeatedly assert that teaching a class on cryptography
    or making software available to students are not "regulated by the
    Government", PI Opp at 1, yet just as repeatedly describe the
    conditions under which the very same activities are regulated by
    the ITAR.  The Government maintains that it "is not threatening to
    prosecute Plaintiff or anyone for teaching cryptography," Id. at
    2, yet continues to argue that the course plan Prof. Bernstein is
    proposing would violate the export controls.

As background, Dan Bernstein, ex-grad-student from UC Berkeley, is
suing the State Department, NSA, 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 most
of the government's as well), are in the EFF Web archives at:
    http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case.
[Actually, not all the paperwork for this Preliminary Injunction is
online yet, but we hope it will be by the time you read this...]

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.  But perhaps at this hearing we can make it legal
for one teacher to teach crypto using the Web this winter.

Please make a positive impression on the judge.  Show her -- by
showing up -- that this case matters to lots of people.  Most court
cases have nobody in the audience.  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, but the session will be tape-recorded and transcribed.
You can take notes if you like.

So, here's your excuse to put on a nice costume, take the morning off,
and pay a call on the inner sanctum of our civil rights.  See you there!

	John Gilmore

PS:  If you can't come, you can still contribute.  Become an EFF
member; see http://www.eff.org/join.