[4928] in cryptography@c2.net mail archive
Re: Justice Dept asks Court of Appeals to reconsider ruling in Bernstein case
daemon@ATHENA.MIT.EDU (Greg Broiles)
Tue Jun 22 11:02:32 1999
Date: Mon, 21 Jun 1999 17:34:13 -0700
From: Greg Broiles <gbroiles@netbox.com>
To: "Steven M. Bellovin" <smb@research.att.com>
Cc: cryptography@c2.net, cypherpunks@cyberpass.net
In-Reply-To: <19990621232616.D781741F16@SIGABA.research.att.com>; from Steven M. Bellovin on Mon, Jun 21, 1999 at 07:26:11PM -0400
On Mon, Jun 21, 1999 at 07:26:11PM -0400, Steven M. Bellovin wrote:
> According to the AP, the Justice Department has asked the 9th Circuit Court
> of Appeals to reconsider its decision in the Bernstein case
> (http://www.nytimes.com/aponline/w/AP-Encryption.html). The article didn't
> say so, but I assume that they've asked for a rehearing by the full
> court, instead of just a three-judge panel.
They've asked for both, which is how this sort of thing works.
They advance two arguments in their petition -
"The EAR's Export Controls on Encryption Source Code Are Not a Facially
Unconstitutional Prior Restraint"
(arguing that the crypto export controls aren't targeted at expressive
activity, and hence not properly subject to a facial challenge on prior
restraint grounds)
and
"The Export Controls on Encryption Source Code are Severable From the
Export Controls on other Encryption Products".
(arguing that the Supreme Court, in _ACLU v. Reno_ 117 S.Ct. 2329,
establishes that it is appropriate for a court to sever part of a
statute or regulation where there is a "textual manifestation" of a
distinction between constitutional and unconstitutional regulation.)
--
Greg Broiles
gbroiles@netbox.com
