[Perry, I don't know if this is worth the list's time, we're getting
into minutiae...zap it if you agree.]
[Nah, I think its of interest. --Perry]
> On a more serious note, when Patel issued Bernstein III, I seem to
> recall a quote where she admonished the government for changing the
> regulations out from under her while she was working on a decision.
> Unfortunately, I can't find this quote. Does someone else recall
> this, and have a pointer?
Curiously I looked this up while composing my own note on their delay,
then decided not to use it. It wasn't as strong as what I had
recalled, which was something on the order of "I don't think you did
it this time, but I am sure it won't happen again." Here's the
paragraph, with the right sentence set off by spaces. It's from:
http://www.eff.org/bernstein/Legal/970825_decision.html
V. Effect of Previous Order
Defendants ask the court to vacate its order in Bernstein II as
the controversy has shifted to the new regulations and Category XIII
of the USML no longer covers plaintiff's software. Plaintiff argues
the court should reaffirm its previous order because the President
left open the possibility that jurisdiction would be shifted back to
the Department of State if export controls under the Commerce
Department prove inadequate. The likelihood of the jurisdiction being
transferred back to the State Department seems too remote to justify
maintaining an order that no longer applies to the controversy before
the court. While the government cannot avoid the constitutional
deficiencies of its regulations by rotating oversight of them from
department to department, the court does not believe that such was the
intent here. Moreover, should the President direct that export
controls on encryption be regulated under the ITAR once more,
plaintiff can come back before this court at that time. However, given
the continuing validity of the rationale in Bernstein II to the
present order, neither is it necessary to vacate that
decision. Accordingly, the court's holding in Bernstein II, in so far
as it relates to the ITAR, is hereby superseded by the present order.
