University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
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

compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
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.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filing Year 1995
Case Closing Year 2003
Case Ongoing No
Additional Resources
click to show/hide detail
  See this case at (May provide additional documents and, for active cases, real-time alerts)
3:95-00582 (N.D. Cal.)
FA-CA-0011-9000.pdf | Detail
Date: 03/24/2006
Source: PACER [Public Access to Court Electronic Records]
General Documents
Order / Opinion (922 F.Supp. 132) (C.D. Cal.)
FA-CA-0011-0001.pdf | WESTLAW| LEXIS | Detail
Date: 04/17/1996
Source: Westlaw
Memorandum and Opinion (945 F.Supp. 1279) (N.D. Cal.)
FA-CA-0011-0002.pdf | WESTLAW| LEXIS | Detail
Date: 12/09/1996
Source: Westlaw
Order / Opinion (974 F.Supp. 1288) (N.D. Cal.)
FA-CA-0011-0003.pdf | WESTLAW| LEXIS | Detail
Date: 08/25/1997
Source: Westlaw
Order / Opinions [two concurring, one dissent] (176 F.3d 1132)
FA-CA-0011-0004.pdf | WESTLAW| LEXIS | Detail
Date: 12/08/1997
Source: Westlaw
Order (192 F.3d 1308)
FA-CA-0011-0005.pdf | WESTLAW| LEXIS | Detail
Date: 09/30/1999
Source: Westlaw
FA-CA-0011-0006.pdf | External Link | Detail
Date: 01/07/2002
show all people docs
Judges Bright, Myron H. (Eighth Circuit) show/hide docs
Fletcher, Betty Binns (Ninth Circuit) show/hide docs
Hug, Procter Ralph Jr. (Ninth Circuit) show/hide docs
Mills, Richard Henry (C.D. Ill.) show/hide docs
Nelson, Thomas G. (Ninth Circuit) show/hide docs
Patel, Marilyn Hall (N.D. Cal.) show/hide docs
FA-CA-0011-0002 | FA-CA-0011-0003 | FA-CA-0011-9000
Plaintiff's Lawyers Bauld, William A. (California) show/hide docs
Bernstein, Daniel (New York) show/hide docs
FA-CA-0011-0006 | FA-CA-0011-9000
Cohn, Cindy A. (California) show/hide docs
FA-CA-0011-0006 | FA-CA-0011-9000
Olson, Karl (California) show/hide docs
Pace, Sarah E. (Illinois) show/hide docs
Revere, Robert Corn (District of Columbia) show/hide docs
Tien, Lee (California) show/hide docs
Wheaton, James Russell (California) show/hide docs
Winter, Richard R. (Illinois) show/hide docs
Defendant's Lawyers Coppolino, Anthony J. (District of Columbia) show/hide docs
Garvey, Vincent M. (District of Columbia) show/hide docs
Hunger, Frank W. (District of Columbia) show/hide docs
Mueller, Robert S. III (California) show/hide docs
Snead, Jacqueline E. Coleman (District of Columbia) show/hide docs
Uitti, Mary Beth (California) show/hide docs

- click to show/hide ALL -

new search
page permalink

- top of page -