Daniel J. BERNSTEIN, Plaintiff — Appellee,
v.
UNITED STATES DEPARTMENT OF JUSTICE; United States Department of Commerce; Department of State; United States Department of Defense; United States Arms Control and Disarmanent Agency; National Security Agency; United States Department of Energy; Central Intelligence Agency; Madeline E. Albright, United States Secretary of State; William M. Daley, United States Secretary of Commerce; William Cohen, United States Secretary of Defense; Kenneth A. Minihan, Director, United States National Security Agency; John B. Holum, Director, United States Arms Control and Disarmanent Agency; William G. Robinson; Gary M. Oncale; Ambassador Michael Newlin; Charles Ray; Mark Koro; Greg Stark; Does 1-100, Defendants-Appellants.
United States Court of Appeals, Ninth Circuit.https://leagle.com/images/logo.png
Argued and Submitted December 8, 1997.
Decided May 6, 1999.
Attorney(s) appearing for the Case
Scott R. McIntosh (argued), Douglas N. Letter, United States Department of Justice, Washington, D.C., for the defendantsappellants.
Cindy A. Cohn (argued), McGlashan & Sarrail, San Mateo, California; and Lee Tien, Berkeley, California; James Wheaton, Elizabeth Pritzker. First Amendment Project, Oakland, California; M. Edward Ross, Steefel, Levitt & Weiss, San Fran cisco, California; Robert Corn-Revere, Hogan & Hartson, LLP, Washington, D.C.; Dean Morehous, Sheri A. Byrne, Thelan, Reid & Priest, San Francisco, California; Sheri Steele, The Electronic Frontier Foundation, San Francisco, California, for the plaintiff-appellee.
Ivan K. Fong, Covington & Burling, Washington, DC, for amicus curiae Electronic Privacy Information Center; American Civil Liberties Union of Northern California; Center for Democracy and Technology; Computer Professionals for Social Responsibility; Economic Strategy Institute; Free Congress Research and Education Foundation; Human Rights Watch; Independence Institute; International Information System Security Certification Consortium; Internet Mail Consortium; Internet Security; National Association of Manufacturers; Privacy International; U.S. Public Policy Committee of the Association for Computing; Dr. Whitfield Diffie; Dr. Peter Neumann; and Dr. Ronald Rivest.
Garrett Epps, University of Oregon School of Law, Eugene, Oregon, for amicus curiae Silicon Valley Software Industry Coalition; Professor Keith Aoki; Professor Margreth Barrett; Professor James Boyle; Professor Garrett Epps; Professor Peter Jaszi; Professor David Lange; and Professor Eugene Volokh.
Brian Conboy, Wilkie Farr & Gallagher, Washington, DC, for amicus curiae Maynard Anderson; D. James Bidzos; National Computer Security Association; Mark Rasch; RSA Data Security, Inc.; Dr. Eugene Spafford; and Dr. Ross Stapleton-Gray.
J. Joshua Wheeler, Charlottesville, Virginia, for amicus curiae Thomas Jefferson Center for Protection of Free Expression.
Richard D. Marks, Vinson & Elkins, Washington, DC, for amicus curiae Association for the Advancement of Science.
Before: BRIGHT, FLETCHER, and T.G. NELSON, Circuit Judges.
United States Court of Appeals, Ninth Circuit.
Opinion by Judge FLETCHER; Concurrence by Judge BRIGHT; Dissent by Judge T.G. NELSON.
FLETCHER, Circuit Judge:
The government defendants appeal the grant of summary judgment to the plaintiff, Professor Daniel J. Bernstein ("Bernstein"), enjoining the enforcement of certain Export Administration Regulations ("EAR") that limit Bernstein's ability to distribute encryption software. We find that the EAR regulations (1) operate as a prepublication licensing scheme...
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