Re: Justice Dept asks Court of Appeals to reconsider ruling in Bernstein case
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 [EMAIL PROTECTED]
Re: Justice Dept asks Court of Appeals to reconsider ruling in Bernstein case
I have a more detailed report on Wired News: http://www.wired.com/news/news/politics/story/20333.html My favorite part of the brief (I quote it): Another argument: That this type of regulation is an executive-branch policy decision involving "extraordinarily sensitive" info that's too secret to disclose publicly. "Judicial review is particularly unworkable [since] decisions always involve an appraisal of the potential impact of proposed encryption exports on the government's [signals intelligence] and cryptoanalysis capabilities." The brief also talks about how the case affects NSA SIGINT capability. -Declan At 07:26 PM 6-21-99 -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.
Re: Justice Dept asks Court of Appeals to reconsider ruling in Bernstein case
In message [EMAIL PROTECTED], Declan McCullagh wri tes: I have a more detailed report on Wired News: http://www.wired.com/news/news/politics/story/20333.html My favorite part of the brief (I quote it): Another argument: That this type of regulation is an executive-branch policy decision involving "extraordinarily sensitive" info that's too secret to disclose publicly. Gee -- did they happen to mention that the CRISIS report concluded that the question could be discussed without reference to classified info?
