The Bernstein Decisions
| April 15, 1996 | Bernstein v. United States (Bernstein Decision #1) |
This is the "source code is speech for the purposes of the First Amendment" ruling. (see page 27 of the decision) US District Judge Marilyn Hall Patel ruled that software source code is protected by the First Amendment. (you might also like to see my one-page summary of both Bernstein decisions, published at Cryptosystems Journal Volume 4 page 119) |
32-page PDF | |
| December 9,1996 | Bernstein v. United States (Bernstein Decision #2) |
"The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." (see page 13 of the decision) "A prior restraint, by contrast and by definition has an immediate an irreversible sanction. If it can be said that a threat of criminal or civil sanction after publication "chills" speech, prior restraint "freezes" it at least for the time." (see page 13 of the decision) "The court reiterates its previous conclusion that source code is speech. Bernstein, 922 F. Supp. at 1436. Software relating to encryption is simply a topic of speech employed by some scientists involved in applied research. Hence, Snuffle is speech afforded the full protection of the First Amendment not because it enables encryption, but because it is itself speech." (see page 16 of the decision) "The ITAR scheme, a paradigm of standardless discretion, fails on every count. This court finds nothing in the ITAR that places even minimal limits on the discretion of the licensor and hence nothing to alleviate the danger of arbitrary or discriminatory licensing decisions." (see page 20 of the decision) US District Judge Marilyn Hall Patel ruled that "the ITAR licensing system as applied to Category XIII(B) acts as an unconstitutional prior restraint in violation of the First Amendment. (see page 23 of the decision) |
41-page PDF | |
