The return of the crypto wars ?

Robert J. Hansen rjh at
Fri Oct 17 20:23:25 CEST 2014

> What do we have to expect next?  US hackers again not allowed to work
> on or "export" open source software?

Warning: I am not a lawyer.  But that's okay, because this law firm
doesn't appear to have any lawyers, either.

In 1995, Dan Bernstein wanted to electronically publish an academic
paper and supporting source code which implemented a cryptosystem.
Under the regulations in place in '95, this was a violation of ITAR and
EAR, the two comprehensive set of rules that govern how munitions and
sensitive information may be exported.  Bernstein filed a lawsuit
claiming this was a violation of his First Amendment right to speak freely.

The trial court, administered by Judge Marilyn Patel, agreed with
Bernstein.  So did the appellate court (Judges Bright, Fletcher and
Nelson).  The government asked for a third level of appeal, the
so-called "en banc review." [1]  The appellate court withdrew their
decision pending the en banc review -- but at the last minute the
government changed the ITAR and EAR regulations in ways that would let
Bernstein post his source code, so the entire case became moot.

There's another case that's on-point here -- _Junger v Daley_, coming
out of the Sixth Circuit in ... uh ... I don't know: '96?  The decision
came down in 2000, at any rate.  The Sixth Circuit held that source code
is protected by the First Amendment.  The government has no more
authority to prevent a U.S. person from publishing source code
internationally than it would have authority to prevent a U.S. person
from sending a painting to the Louvre, or a copy of a book to a friend

So, yeah.  I am not in any way worried.  The U.S. government has argued
*five times* in federal court that libre hackers may be prohibited from
sharing our source code internationally... and *five times* the federal
courts have smacked it down as unconstitutional.  There's a lot of
precedent protecting libre hackers.  For once, the system worked the way
it's supposed to.

[1] The United States federal judicial system is broken up into what are
called "circuits".  California, Hawai'i, Alaska, Oregon, Washington and
some other states comprise the Ninth Circuit.  In every circuit but the
Ninth, en banc review means *every* appeals judge on the circuit is
asked to weigh in on a decision.  The Ninth Circuit is so large, though,
that polling every appellate judge is considered impractical.  Instead,
in the Ninth Circuit an en banc hearing means the case is heard before
11 different appellate judges.

If you get the idea en banc review is a big deal, you're right.  Very
few cases receive en banc review, and those are usually ones that the
appellate court believes are making a beeline for SCOTUS.

The reason why I called it the "so-called 'en banc review'" is because
it's a misnomer.  In the Ninth Circuit, an en banc review isn't really
an en banc review -- it's just 11 judges, not all 45.

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