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Case Name Bernstein v. U.S. Department of Justice FA-CA-0011
Docket / Court CV-95-00582 ( N.D. Cal. )
State/Territory California
Case Type(s) National Security
Speech and Religious Freedom
Case Summary
On February 21, 1995, a PhD student in mathematics and cryptography at the University of California, Berkeley, filed this lawsuit in the U.S. District Court in the Northern District of California. The plaintiff sued the United States Government, including the U.S. State Department and the National ... read more >
On February 21, 1995, a PhD student in mathematics and cryptography at the University of California, Berkeley, filed this lawsuit in the U.S. District Court in the Northern District of California. The plaintiff sued the United States Government, including the U.S. State Department and the National Security Agency under the Administrative Procedure Act. The plaintiff, represented by attorneys from the First Amendment Project as well as private attorneys, asked the court for declaratory and injunctive relief from the government’s enforcement of the Arms Export Control and the International Traffic in Arms Regulations (ITAR). Specifically, the plaintiff claimed that the process for registering encryption algorithms as if they were physical weapons violated his First Amendment rights to free speech.

On April 15, 1996, Judge Marilyn H. Patel denied the defendant’s motion to dismiss on the basis that the claims that the plaintiff made were indeed justiciable. 922 F. Supp. 1426 (N.D. Cal. 1996). Most importantly, Judge Patel affirmed for the first time that source code was to be considered speech for the purposes of First Amendment claims.

On December 9, 1996, Judge Patel released another order granting in part and denying in part both the plaintiff’s and the defendants’ motions for summary judgement, neither of which materially affected the case. The holding of that case was that the ITAR effected an unconstitutional prior restraint on speech due to inadequate procedural safeguards. Just prior to the court's order, the government transferred jurisdiction over the export of nonmilitary encryption products to the Department of Commerce, and the plaintiff amended his complaint to include that department as a defendant in this matter.

On August 25, 1997, Judge Patel found that the regulations on encryptions were an unconstitutional prior restraint in violation of the First and enjoined the defendants from enforcing the regulations against the plaintiff or against anyone else who sought to use, discuss or publish the plaintiff's encryption program. 974 F. Supp. 1288 (N.D. Cal. 1997). On September 9, 1997, Judge Patel granted the defendant’s motion to stay the injunction pending appeal; on September 22 the Ninth Circuit agreed to expedite the appeal process. The Ninth Circuit held oral argument on December 8, 1997 and affirmed the trial court’s decision in an opinion released on May 6, 1999. 176 F.3d 1132 (9th Cir. 1999). However, the defendants petitioned for an en banc rehearing and it was granted, and the initial decision withdrawn. 192 F.3d 1308 (9th Cir. 1999).

Before the Ninth Circuit could hold a rehearing, the defendants once again changed the regulations at issue, and on April 11, 2000, the Ninth Circuit dismissed the case without prejudice and remanded it to the district court. The new regulations loosened up the government oversight of open source encryption software. However, the plaintiff filed an amended complaint based on his claim that the regulations were still too burdensome. Despite his new claims, on July 8, 2003, Judge Patel ruled against the plaintiff and granted summary judgement to the defendants, holding that the plaintiff did not have standing to bring this action.

This case is now closed.

Kat Brausch - 06/20/2016


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) United States Department of State
Plaintiff Description A PhD candidate in mathematics at University of California at Berkeley working in the field of cryptography.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2003
Case Ongoing No
Docket(s)
3:95-00582 (N.D. Cal.) 03/24/2006
FA-CA-0011-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Order / Opinion 04/17/1996 (922 F.Supp. 132) (C.D. Cal.)
FA-CA-0011-0001.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Memorandum and Opinion 12/09/1996 (945 F.Supp. 1279) (N.D. Cal.)
FA-CA-0011-0002.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order / Opinion 08/25/1997 (974 F.Supp. 1288) (N.D. Cal.)
FA-CA-0011-0003.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order / Opinions [two concurring, one dissent] 12/08/1997 (176 F.3d 1132)
FA-CA-0011-0004.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order 09/30/1999 (192 F.3d 1308)
FA-CA-0011-0005.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Complaint 01/07/2002
FA-CA-0011-0006.pdf | Detail
Judges Bright, Myron H. (Eighth Circuit)
FA-CA-0011-0004
Fletcher, Betty Binns (Ninth Circuit)
FA-CA-0011-0004
Hug, Procter Ralph Jr. (Ninth Circuit)
FA-CA-0011-0005
Mills, Richard Henry (C.D. Ill.)
FA-CA-0011-0001
Nelson, Thomas G. (Ninth Circuit)
FA-CA-0011-0004
Patel, Marilyn Hall (N.D. Cal.)
FA-CA-0011-0002 | FA-CA-0011-0003 | FA-CA-0011-9000
Monitors/Masters None on record
Plaintiff's Lawyers Bauld, William A. (California)
FA-CA-0011-9000
Bernstein, Daniel (New York)
FA-CA-0011-0006 | FA-CA-0011-9000
Cohn, Cindy A. (California)
FA-CA-0011-0006 | FA-CA-0011-9000
Olson, Karl (California)
FA-CA-0011-9000
Pace, Sarah E. (Illinois)
FA-CA-0011-9000
Revere, Robert Corn (District of Columbia)
FA-CA-0011-9000
Tien, Lee (California)
FA-CA-0011-0006
Wheaton, James Russell (California)
FA-CA-0011-9000
Winter, Richard R. (Illinois)
FA-CA-0011-9000
Defendant's Lawyers Coppolino, Anthony J. (District of Columbia)
FA-CA-0011-9000
Garvey, Vincent M. (District of Columbia)
FA-CA-0011-9000
Hunger, Frank W. (District of Columbia)
FA-CA-0011-9000
Mueller, Robert S. III (California)
FA-CA-0011-9000
Snead, Jacqueline E. Coleman (District of Columbia)
FA-CA-0011-9000
Uitti, Mary Beth (California)
FA-CA-0011-9000
Other Lawyers None on record

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