Bernstein v. United States

Bernstein v. United States is a set of court cases brought by Daniel J. Bernstein challenging restrictions on the export of cryptography from the United States.

"Snuffle" redirects here. For other uses, see Snuffles.
Bernstein I
CourtUnited States District Court for the Northern District of California
Full case nameDaniel J. Bernstein et al., v. United States Department of State et al.
DecidedApril 15, 1996
Citation(s)922 F. Supp. 1426
Court membership
Judge(s) sittingMarilyn Hall Patel
Bernstein II
CourtUnited States District Court for the Northern District of California
Full case nameDaniel J. Bernstein et al., v. United States Department of State et al.
DecidedDecember 9, 1996
Citation(s)945 F. Supp. 1279
Court membership
Judge(s) sittingMarilyn Hall Patel
Bernstein III
CourtUnited States Court of Appeals for the Ninth Circuit
Full case nameDaniel J. Bernstein et al., v. United States Department of State et al.
DecidedAugust 25, 1997
Citation(s)176 F.3d 1132
Case history
Prior action(s)Hon. Marilyn Hall Patel ruled for plaintiff in 974 F.Supp. 1288
Case opinions
Opinion by Fletcher
Concurrence by Bright
Dissent by Nelson
Court membership
Judge(s) sittingBetty Binns Fletcher, Myron H. Bright, Thomas G. Nelson

History

The case was first brought in 1995, when Bernstein was a student at University of California, Berkeley, and wanted to publish a paper and associated source code on his Snuffle encryption system. Bernstein was represented by the Electronic Frontier Foundation, who hired outside lawyer Cindy Cohn and also obtained pro bono publico assistance from Lee Tien of Berkeley; M. Edward Ross of the San Francisco law firm of Steefel, Levitt & Weiss; James Wheaton and Elizabeth Pritzker of the First Amendment Project in Oakland; and Robert Corn-Revere, Julia Kogan, and Jeremy Miller of the Washington, DC, law firm of Hogan & Hartson. After four years and one regulatory change, the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional.[1] Regarding those regulations, the EFF states:

Years before, the government had placed encryption, a method for scrambling messages so they can only be understood by their intended recipients, on the United States Munitions List, alongside bombs and flamethrowers, as a weapon to be regulated for national security purposes. Companies and individuals exporting items on the munitions list, including software with encryption capabilities, had to obtain prior State Department approval.

— Electronic Frontier Foundation: EFF's History[2]

The government requested en banc review.[3] In Bernstein v. U.S. Dept. of Justice, 192 F.3d 1308 (9th Cir. 1999), the Ninth Circuit ordered that this case be reheard by the en banc court, and withdrew the three-judge panel opinion, Bernstein v. U.S. Dept. of Justice, 176 F.3d 1132 (9th Cir.1999).[4]

The government modified the regulations again, substantially loosening them, and Bernstein, now a professor at the University of Illinois at Chicago, challenged them again. This time, he chose to represent himself, although he had no formal legal training. On October 15, 2003, almost nine years after Bernstein first brought the case, the judge dismissed it and asked Bernstein to come back when the government made a "concrete threat".[5]

Recent

Apple cited Bernstein v. US in its refusal to hack the San Bernardino shooter's iPhone, saying that they could not be compelled to "speak" (write code)[6]

See also

References
  1. "U.S. Court of Appeals for the Ninth Circuit: Bernstein v. USDOJ". Electronic Privacy Information Center. 1999-05-06. Retrieved 2019-04-17.
  2. "EFF's History". EFF's History. Electronic Frontier Foundation. Retrieved 4 May 2012.
  3. Bernstein, Daniel J. "Summary of the case status". cr.yp.to. Retrieved 2019-04-17.
  4. "192 F. 3d 1308 - Daniel Bernstein v. United States Department of Justice". OpenJurist. Retrieved 2019-04-17.
  5. Bernstein, Daniel J. "Press Release: Crypto Case on indefinite hold". cr.yp.to. Retrieved 2019-04-17.
  6. No Author Identified, Wired Magazine. "Apple to FBI: You Can't Force Us to Hack the San Bernardino iPhone". Retrieved 2021-01-06.
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