FOR IMMEDIATE RELEASE
Monday, June 21, 1999

DOJ Seeks Rehearing of Landmark Ruling in Bernstein Encryption Case

CONTACTS:

    Cindy Cohn, McGlashan and Sarrail
    (650) 341-2585
    Alex Fowler, Electronic Frontier Foundation
    (415) 436-9333 x103

As expected, the U.S. Government today sought further review by the 9th Circuit
of a 3 judge panel's recent decision holding that the federal government's
regulations of encryption is unconstitutional. The Petition, which seeks both
rehearing from the panel and rehearing en banc by an 11 judge panel, asserts
two basic arguments, neither of which is new to the case.

The government argues that the 9th Circuit panel incorrectly determined that
the export restrictions on source code are facially unconstitutional. This
argument is based upon an entirely unsupported assertion that source code is
only used expressively "on occasion."

"This should come as a big surprise to the millions of people who study, write,
read, and develop their ideas using programming languages," noted lead counsel,
Cindy Cohn. "This includes most of the inhabitants of Silicon Valley, as well
as the mathematics, physics, computer science and other departments of high
schools, universities, and businesses worldwide where such expressions are
written, read, and reviewed daily. It is also is directly contradicted by
evidence included in the record of this case."

The government also argues that the court should have rewritten the regulations
to make them Constitutional rather than strike them down. By this, the
government is asking the Court to step into the shoes of the agency and rewrite
the regulations.

"Obviously this is not a proper role for a court," stated Ms. Cohn. "Indeed had
the Court done so the government would have protested the 'judicial activism'
of the Court. Writing regulations that meet the constitutional standards for
free speech is certainly within the abilities of the Commerce Department."

"In sum, the Petition for Rehearing is not surprising, nor does it raise any
new arguments," Cohn concluded. "It instead indicates the intention of the
Government to delay justice for Professor Bernstein and the millions of others
who are restricted by the encryption regulations for as long as possible."

Background

The Ninth Circuit Court of Appeals ruled on May 6, 1999 that the federal
government's restrictions on encryption are unconstitutional, affirming a lower
court's ruling that export control over cryptographic "software and related
devices and technology are in violation of the First Amendment on the grounds
of prior restraint."

The case has been sponsored by EFF since 1995 because of its importance to
society, free expression, electronic commerce, and privacy in the digital
world.

Encryption, the process of coding and decoding computerized information, is the
most critical technological solution to protecting privacy and keeping computer
networks secure. Acknowledging this point, the appeals court said "[t]he
availability and use of secure encryption may offer an opportunity to reclaim
some portion of the privacy we have lost. Government efforts to control
encryption thus may well implicate not only the First Amendment rights of
cryptographers intent on pushing the boundaries of their science, but also the
constitutional rights of each of us as potential recipients of encryption's
bounty."

The EFF Bernstein legal team consists of: Cindy A. Cohn, McGlashan & Sarrail;
Lee Tien; James Wheaton & Elizabeth Pritzker, First Amendment Project; Robert
Corn-Revere, Hogan & Hartson; M. Edward Ross, Steefel, Levitt & Weiss; and Dean
Morehous & Sheri A. Byrne, Thelen, Marin, Johnson & Bridges.

Details on the Bernstein case, including information on the lower court's
rulings, are available on the Internet at http://www.eff.org/bernstein.
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The Electronic Frontier Foundation (http://www.eff.org) is the leading global
organization linking technical architectures and legal frameworks to support
the rights of individuals in an open society. Founded in 1990, EFF actively
encourages and challenges industry and government to support free expression,
privacy, and access in the information society. The Electronic Frontier
Foundation maintains the 4th most-linked-to Web site in the world.
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