another development in the Bernstein case

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Date: Mon, 18 Oct 1999 17:25:09 -0700
To: From: Cindy Cohn <>
Subject: Bernstein case: govt moves for a continuance of en banc

Today the government asked the 9th Circuit en banc panel for further
briefing and a delay in the oral argument date (currently set for
16, 1999) based upon the fact that it will issue revised encryption
regulations on December 15, 1999.

Although admitting that the new regulations may "not materially change
treatment of source code" the government has told the Court that "it
possible that the revised regulations will alter the treatment of
code in ways that could have a bearing on the constitutional issues
this Court."

Addressing the fact that the public pronouncements about the new
regulations, including the "Questions and Answers" page of the BXA web
site (, state that source code
not be affected by the changed regulations, the government said "That
document does not reflect the review that is currently taking place."

Bernstein will oppose the motion, on the grounds that the mere
"possibility" that the regulations will impact source code is
to grant a further delay of this case, especially since:

1. The courts have held that the regulations constitute a
prior restraint
on speech,
2. Professor Bernstein has now been waiting over 7 years to
publish his
program, and
3. The government already enjoyed an 8 month delay in this
case when it
issued revised regulations that did not materially affect
the case in 1997.

Bernstein's opposition should be filed by October 29.

-- Hal Abelson, October 18, 1999