IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL J. BERNSTEIN )
)
Plaintiff/Appellee, )
)
v. )
) No. 97-16686
)
UNITED STATES DEPARTMENT OF ) C-95-0582 MHP
STATE et al., ) (N.D. California,
) San Francisco)
)
Defendants/Appellants )
)
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
HONORABLE MARILYN HALL PATEL, PRESIDING
APPELLEE'S OPPOSITION TO EMERGENCY MOTION FOR STAY
CINDY A. COHN, ESQ.; SBN 145997
McGLASHAN & SARRAIL
Professional Corporation
177 Bovet Road, Sixth Floor
San Mateo, CA 94402
Tel: (415) 341-2585
Fax: (415) 341-1395
LEE TIEN, ESQ.; SBN 148216
1452 Curtis Street
Berkeley, CA 94702
Tel: (510) 525-0817
JAMES WHEATON; SBN 115230
ELIZABETH PRITZKER; SBN 146267
FIRST AMENDMENT PROJECT
1736 Franklin, 8th Floor
Oakland, CA 94612
Tel: (510) 208-7744
ROBERT CORN-REVERE, ESQ.
JONATHAN FRANKLIN, ESQ.
Hogan & Hartson, L.L.P.
555 Thirteenth Street, NW
Washington, DC 20004
Tel: (202) 637-5600
Attorneys for Appellee
Daniel J. Bernstein
INTRODUCTION
After conceding that source code is speech ("It is undeniably true
that encryption source code, such as the source code for Snuffle . . . can
be read and understood by computer scientists and
programmers.")(Appellants' Stay Motion at 15), Appellants still assert
that the prior restraint on this speech undeniably created by their
regulatory scheme should be continued pending appeal. This request, which
has been denied by the District Court, should again be denied.
BACKGROUND
For the past five years the government has restrained the
Plaintiff/Appellee, Professor Daniel Bernstein, from publishing his
academic research and computer source code in the field of cryptography.
The First Amendment to the United States Constitution denies to the
government the ability to impose prior restraints on speech except in
those few "exceptional cases," Near v. Minnesota, 283 U.S. 697, 706
(1931), where publication will cause "direct, immediate and irreparable
harm to the nation." New York Times Co. v. United States, 403 U.S. 701,
730 (1971) (Stewart, J., joined by White, J. concurring); see also id. at
726-27 (Brennan, J., concurring); id. at 719 (Black, J. and Douglas J.,
concurring). Nor may the government impose even lesser restrictions on
expressive activity based on "speculation about serious harms." United
States v. Nat'l Treasury Employees Union, 115 S. Ct. 1003, 1017 (1995).
Instead, the government must "demonstrate that the recited harms are real,
not merely conjectural." Turner Broadcasting Systems, Inc. v. FCC, 114 S.
Ct. 2445, 2470 (1994).
Despite these settled rules of constitutional law, Professor Bernstein has
been precluded from engaging in traditional academic dialogue in his
chosen field since 1992, when he first sought assurance from the
government that he could publish his Snuffle 5.0 encryption software and
related documents. The government steadfastly denied his request -- just
as it is seeking to do now. During the intervening years, Professor
Bernstein has been given erroneous information (that subsequently was
disavowed by the government), had an academic paper about Snuffle wrongly
classified as a "munition" (also disavowed by the government), and has
been subjected to unconscionable delays. Bernstein v. U.S. Department of
State, 922 F.Supp. 1426, 1434 (N.D. Cal. 1996) ("Bernstein I") ("item
defendants now contend could not be subject to regulation was apparently
categorized as a defense article and subject to licensing for nearly two
years").
Professor Bernstein was forced to seek redress in federal court. The
District Court held, in three separate opinions, that the Government's
licensing regulations on encryption source code constitute a facial prior
restraint on protected speech. In two of those opinions, the District
Court held that the prior restraint was unconstitutional. In the last of
those opinions, issued August 25, 1997, the District Court granted an
injunction to protect Professor Bernstein and others from prosecution for
discussing the science of cryptography, including in the international
electronic forum of the Internet. This injunction was limited to
Professor Bernstein and those who would interact with him and the
cryptographic ideas he sought to publish and discuss.
Shortly thereafter, in response to the Government's emergency stay motion
in the District Court, that Court reluctantly stayed the injunctive relief
in part, limiting it even further to protect only Professor Bernstein and
only in the electronic publication of a two-page computer program called
Snuffle 5.0 (Exhibit A filed herewith) and later versions of that program
(hereinafter collectively referred to as "Snuffle") pending appeal. The
District Court emphasized its extreme reluctance to grant even the partial
stay, given what it felt were facts clearly undermining the Government's
claim of harm. See Transcript made part of Order.
The Government here challenges the remaining, extremely limited injunction
left after the District Court's partial stay. They claim, without any
concrete evidence, that electronic publication of Snuffle pending appeal
of the broader question the facial invalidity of the encryption
regulations will do "irreparable harm" to the security of the United
States. Relying on declarations of government officials that say precious
little about the subject of the instant Motion -- the ability to publish
Snuffle -- Defendants instead base their stay request upon a general
recitation of the history of military cryptography. "Encryption has long
been a tool in the conduct of military and foreign affairs," Defendants
state, Stay Mot. at 3, and they contend therefore that this Court must
prolong the prior restraint without asking too many questions. See
Crowell Decl. at para. 10. At bottom, Defendants assert that a stay is
necessary because: (1) the District Court erred in holding that Plaintiff
has been improperly restrained from engaging in fully protected speech,
and (2) the nation will be irreparably harmed unless publication is
restrained.
Appellants' essential claim is that the keeping of messages secret is
inherently dangerous. But "the American Founding Fathers did not believe
codes and ciphers were employed from purposes of evil and cruelty."
Rather, they viewed secret writing as an essential instrument for
protecting critical information not only in wartime, but in peacetime, as
well. During the period when our Constitution was written, "cipher was
employed extensively not only in public correspondence but in the private
correspondence of public men as well." Thomas Jefferson was one of the
more prolific users of cryptography among the Constitution's framers.
The use of cryptography, as well as free academic inquiry, have always
been part of America's tradition of free speech. The government itself
has acknowledged this in the past, concluding that restrictions on the
academic exchange of cryptographic technical data were a prior restraint.
The invention and use of computers does not alter the inherent First
Amendment dimension of this issue. See Reno v. ACLU, 117 S. Ct. 2329,
2344 (1997). Here, the government's efforts to downplay the First
Amendment intrusions created by its encryption software regulations are
exceeded only by its attempt to inflate its national security assertions.
Neither of these efforts is sufficient to require the granting of a stay
to prevent the publication of Snuffle.
ARGUMENT
In order to obtain a stay pending appeal, the Government must demonstrate
either that it will suffer irreparable harm pending appeal combined with
probable success on the merits, or that serious questions exists on appeal
and "the balance of hardships tips sharply in [its] favor." Tribal
Village of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir. 1988). Moreover,
the District Court's denial of a request for a complete stay pending
appeal is entitled to substantial deference. In particular, a District
Court order enjoining unconstitutional government action that violates the
First Amendment may be set aside only if the court abused its discretion.
Christian Science Reading Room v. City and County of San Francisco, 784
F.2d 1010 (9th Cir. 1986), cert. denied, 479 U.S. 1066 (1987); Regents of
the University of California v. ABC, Inc., 747 F.2d 511, 522 n.7 (9th
Cir. 1984) (denial of stay request is not an abuse of discretion).
The Government has satisfied neither standard under which a stay could be
issued to prevent the publication of Snuffle. They have presented only
conclusory allegations that electronic publication of Snuffle will harm
national security in some undefined way -- allegations that only underscore
the Government's lack of concrete justification for the prior restraint it
seeks to impose. Balanced against these unsupported assertions is the
very real, and necessarily irreparable, harm that Professor Bernstein will
suffer through the continued prior restraint on the publication of his
academic work. Finally, even if the Government could show that it would
suffer irreparable harm in the absence of a stay, or that the balance of
hardships tips "sharply" in its favor -- which it cannot -- the Government has
failed to show the requisite likelihood of success on the merits.
In sum, the District Court plainly did not abuse its discretion in holding
that a stay should not be granted to prevent the publication of Snuffle
pending appeal. The Government's regulations significantly impact
Professor Bernstein's free speech rights, and that the Government's prior
restraint contains none of the safeguards required by the First Amendment.
Finally, the public interest -- far from militating in favor of the continued
restraint -- in fact supports the District Court's injunction allowing
Professor Bernstein to continue his academic work without further
Government censorship.
I. THE BALANCE OF DEMONSTRATED HARDSHIPS TIPS OVERWHELMINGLY IN
PROFESSOR BERNSTEIN'S FAVOR
A. The Government Has Failed To Prove Any Harm From the
Publication of Snuffle, Much Less Irreparable Harm
The Government cannot receive a stay based on merely speculative
assertions of harm. See, e.g., Caribbean Marine Servs. Co. v. Baldridge,
844 F.2d 668, 674 (9th Cir. 1988) (preliminary injunction standards). Yet
the Government has made no concrete showing that the limited injunction
now in place will harm national security in any way. As the District
Court found, the government has offered nothing more than bare allegations
of harm, which are clearly insufficient to meet the requirements of harm
necessary to justify a prior restraint on speech. Bernstein III, slip op
at 26:3-20. This same bare allegation is insufficient here as well, where
the government seeks to stay an injunction based on alleged national
security concerns. See Armstrong v. Executive Office of the President,
877 F. Supp. 750 (D.D.C. 1995) (National Security Council denied stay
pending appeal where it could not show likelihood of success on the merits
or irreparable injury).
The Government adds nothing new in their Motion for Stay or the
supporting declarations, merely repeating the conclusory assertions that
the use of encryption "can impede intelligence gathering," "can
jeopardize" foreign policy interests and "can threaten" the safety of U.S.
citizens. Stay Mem at 19. Once again, however, the Government offers no
evidence whatsoever that any actual harm has or will result from the
export of encryption programs that are freely available in this country in
any form and freely exportable in paper versions, and it certainly has
demonstrated no specific harm that will result from the posting of Snuffle
on the Internet. Where the deprivation of First Amendment rights is at
issue, it is an abuse of discretion to grant a stay absent a compelling
showing by the government that such a stay is necessary. See Wildmon v.
Berwick Universal Pictures, 983 F.2d 21, 23-24 (5th Cir. 1992) (stay of
injunctive relief issued to "preserve the status quo" reversed where
district court had granted injunction on First Amendment grounds). The
Government's conclusory, unsupported allegations of harm merely underscore
the patent invalidity of the prior restraint it seeks to impose on
Professor Bernstein's speech. It seeks to review in advance, and censor,
the electronic communications of Professor Bernstein and others in his
field, yet presents no evidence of any specific national security
interests that would be harmed by such communications.
Moreover, it is plain that not even the Government believes its
own assertions here regarding national security concerns for cryptography
on the Internet. As Vice Admiral J. M. McConnell of the National
Security Agency testified before Congress, "[e]ncryption software
distribution via Internet, bulletin board or modem does not undermine the
effectiveness of encryption export controls." Even Appellants' current
declarant, William Crowell, told Congress as recently as last year that
the Internet did not pose a problem for export controls because, "serious
users of security products don't obtain them from the Internet." The
Government's own testimony therefore confirms that they have failed to
demonstrate irreparable harm from web site postings of encryption software
in general, much less the specific posting of Snuffle.
The Pentagon Papers case, which the District Court relied on
below, further supports denial of the Government's motion. See United
States v. New York Times Co., 328 F. Supp. 324, 330 (S.D.N.Y.) (injunction
denied where government could not demonstrate irreparable harm), aff'd,
403 U.S. 713 (1971). There, the Second Circuit granted a very limited,
three-day stay of the District Court's decision to permit publication of
the Pentagon Papers despite the government's national security
allegations. Yet the Supreme Court reversed even this short, targeted
restriction on publication. United States v. New York Times, 444 F.2d 544
(2d Cir. 1971), rev'd, 403 U.S. 713 (1971). In a parallel case, the D.C.
Circuit declined to overturn the District Court's denial of an injunction
with respect to publication in the Washington Post, and the Supreme Court
upheld that decision. United States v. The Washington Post Co., 446 F.2d
1327 (D.C. Cir. 1971) (en banc), aff'd, 403 U.S. 713 (1971).
It is particularly instructive that the government argued in the
Pentagon Papers case that suppression of speech was necessary to preserve
secrets relating to cryptography. In a hearing at the U.S. Court of
Appeals for the D.C. Circuit, an NSA official argued that, in its "worst
case" scenario, publication of the Pentagon Papers would reveal that the
United States had the ability to decode North Vietnamese communications.
This assertion, however, was insufficient to support the proposed
restraint. The Supreme Court similarly found the national security
claims unsubstantiated, holding that the government must demonstrate that
publication would cause direct, immediate and irreparable harm to the
nation. As in the Pentagon Papers cases, it would be an abuse of
discretion for this Court to grant this stay based upon nothing more than
assertions of a national security interest. Cf. Clinton v. Jones, 117 S.
Ct. 1636, 1651-2 (1997).
With respect to national security, it should be emphasized that
the injunctive relief presently in force is very narrow. All that
Professor Bernstein can do under the remaining injunction is to publish
electronically two pages of source code, Exhibit A, as well as any
improvements which he has made to that code in the many years since he
first began asking the government for permission to publish. No other
person can republish Professor Bernstein's source code, even to comment on
it or improve upon it as part of the normal scientific process.
Furthermore, Professor Bernstein cannot publish any of his other ideas in
the field or comment upon the ideas of others on the Internet. Even if
the Government could demonstrate harm arising from Professor Bernstein's
publication of cryptographic information in general -- which it cannot -- it
plainly has shown no harm arising from the narrow relief that is presently
at issue.
Moreover, as noted, the Government's claim of irreparable harm
claim is particularly undermined because of the exemption in the
regulations for source code printed on paper. The District Court found
that this exemption deprived the Government's national security claims of
credibility, holding that:
Defendants claim that encryption poses unique and serious threats to
national security, yet the printed matter exception belies this rationale
by making encryption freely available to only those foreigners are
technologically sophisticated. Defendants conceded at oral argument that
the effect of this dichotomy would be to make it more difficult only for
the inept.
Bernstein III, slip op. at 25. This finding was not an abuse of
discretion. Not only is the distinction between Internet publication and
paper publication clearly untenable in light of the Supreme Court's recent
decision in Reno v. American Civil Liberties Union, 117 S.Ct. 2239 (1997),
but it is not necessary to grant a stay to "preserve the status quo"
where, as here, cryptographic information is freely available to foreign
entities in other forms.
Additionally, the Government's claims are undermined by the fact
that a wide range of cryptographic software is already available overseas.
See Declaration of David Balenson, with cryptography study attached
(Exhibit G). When 570 cryptographic products are already available
abroad, using strong cryptographic software and algorithms developed first
in the U.S. as well as others developed by foreign sources, the
government's claims of irreparable harm due to the publication of the
simple Snuffle program begin to look quite ridiculous.
Defendants' claim that a stay is necessary to preserve the status
quo rests most uneasily next to their statement that "[o]nce Snuffle is
exported to a person or group abroad, whether via the Internet or in some
other way, it is impossible to control either the persons who receive it
or the use that they make of it." Stay Mot. at 21. By their own
assertions, this already is the status quo, since the government has
claimed that Snuffle has been made available on "publicly accessible
computers overseas." Stay Mot. at 21, Reinch Decl. � 8. Under settled
law, no injunction preventing publication can be retained under these
circumstances, regardless of the government's national security
assertions.
B. Professor Bernstein Will Suffer Irreparable Harm to His First
Amendment Rights if the Prior Restraint is Continued Pending Appeal
Professor Bernstein has been restrained from the electronic publication of
his protected expression for more than five years. And despite the
District Court's December, 1996 holding that the restraint is
unconstitutional and its pending issuance of a final injunction, he has
continued to be restrained. The continued restraint on him is now plainly
unacceptable. It is well-settled that " �[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.' " American-Arab Anti-Discrimination Comm. v. Reno,
70 F.3d 1045, 1057 (9th Cir. 1995) (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976) (plurality opinion)). Accord, Topanga Press, Inc. v. City of
Los Angeles, 989 F.2d 1524, 1528-29 (9th Cir. 1993); San Diego Comm.
Against Registration and the Draft v. Governing Bd. of the Grossmont Union
High School Dist., 790 F.2d 1471, 1473 n.3 (9th Cir. 1986). Accordingly,
a stay of District Court's injunction pending appeal, regardless of
whether the appeal is expedited, would irreparably harm Professor
Bernstein by preventing him from engaging in activities protected by the
First Amendment.
The Government nevertheless asserts that since it has successfully
restrained Professor Bernstein for so long pending the District Court's
final injunction, continuing that restraint "can hardly be said to impose
a significant burden on Bernstein." Stay Mot. 22:11. This argument turns
First Amendment prior restraint doctrine on its head. The fact that the
Government has been able to censor Professor Bernstein's publications to
date weighs not in favor of further restraint, but rather in favor of
ending the restraint. Professor Bernstein has been waiting more than five
years to be free from the threat of criminal prosecution for engaging in
protected speech. Now that the District Court has finally ruled in his
favor, he should not be forced to wait any longer.
II. THE GOVERNMENT HAS NOT SHOWN THE REQUISITE LIKELIHOOD OF SUCCESS
ON THE MERITS
The Government's failure to identify any concrete harm that would befall
it in the absence of a stay is fatal to its motion. See Bernard v. Air
Line Pilots Ass'n, 873 F.2d 213 (9th Cir. 1989). In addition, the
Government has failed to demonstrate the requisite likelihood of success
on the merits. The District Court quite properly held that the encryption
regulations are plainly unconstitutional on their face. They regulate
protected speech; they are a prior restraint and they contain none of the
procedural protections required by Freedman v. Maryland, 380 U.S. 51
(1965), and its progeny. Nothing in the government's brief casts doubt on
these conclusions.
A. The Regulations Specifically Target Speech
Contrary to the government's current claim, the export controls relating
to encryption are "specifically directed at speech protected by the First
Amendment." Bernstein III, slip op. at 24. Just as it argued below, the
government now asserts that the export licensing requirements at issue do
not act as a prior restraint because they are not aimed at "preventing the
free exchange of information and ideas" but only at the "functional
capacity" of encryption software. Stay Mot. at 14, 15. Defendants' claim
is wrong for several reasons. First, by their terms, the export
regulations are not limited to controlling only source code or software,
but apply to a range of expressive activities--including here to the
"instructions" for Snuffle written by Professor Bernstein in
English--whether or not they have "functionality." As noted below, in the
realm of academic speech, restricting the exchange of source code
inherently limits the exchange of "information and ideas." Moreover, by
singling out software on the subject of cryptography from other software,
the regulations are plainly content-based. The District Court found that:
[A]s made explicit by the new regulations, export includes publication
where the publication is or could be made electronic and even where the
information to be published is already publicly available. In fact, in
spite of the disclaimers regarding functionality and the exception for
printed materials, the encryption regulations issued by the BXA appear to
be even less friendly to speech interests than the ITAR. Here, encryption
software is singled out and treated differently than other software
regulated under the EAR.
Bernstein III, slip op. at 24.
B. Encryption Source Code, Like All Source Code, Is Protected
Expression
As noted above, the Government agrees that it is "undeniably true that
encryption source code, such as the source code for Snuffle . . . can be
read and understood by computer scientists and programmers" but asserts
that restricting such academic exchange is not a limitation on speech
because export controls are directed at the "non-expressive function of
cryptographic software" and not at "whatever information may be claimed to
be embodied and conveyed." Stay Mot. at 15-16. This is nothing more than
sophistry, and Defendants cite no case law to support this new category of
lesser protected speech they seek to have recognized. Moreover, as the
District Court held, "functionality" cannot be restricted without
censoring the "information . . . embodied and conveyed":
By the very terms of the encryption regulations, the most common
expressive activities of scholars -- teaching a class, publishing their
ideas, speaking at conferences, or writing colleagues over the Internet --
are subject to a prior restraint by the export controls when they involve
cryptographic source code or computer programs. In the field of applied
science ideas are not just expressed in abstract, theoretical terms, but
in precise applications. Those applications are subject to licensing
under the encryption regulations and are excluded from the exemptions for
fundamental research and educational information.
Bernstein III, slip op. at 23.
The District Court's findings are confirmed by M.I.T. computer science
professor and author of the leading introductory textbook on computer
science, Harold Abelson (see Exhibit E), among many others in the
Declarations and exhibits submitted below. Professor Abelson quoted the
introduction to his textbook:
First, we want to establish the idea that a computer language is not just
a way of getting a computer to perform operations but rather that it is a
novel formal medium for expressing ideas about methodology. Thus,
programs must be written for people to read, and only incidentally for
machines to execute.
Abelson Declaration, Exhibit E, at para. 8, quoting preface to Abelson &
Sussman, "Structure and Interpretation of Computer Programs," MIT Press
and McGraw-Hill Book Company (1985)
Further support is found in scholarly legal analysis and in the fact that
computer programs are protected under copyright law just as other forms of
speech: As the Office of Technology Assessment noted, "Like other
copyrightable works, programs symbolize information to human beings, and
can be read and understood by programmers. The CONTU report stressed that
programs, like other copyrightable works, communicate to those who can
read them." Office of Technology Assessment, Intellectual Property Rights
in an Age of Electronics and Information 80 (1986). Since the first
amendment protects an individual's right to communicate with others, it
must protect a computer programmer's right to communicate with others in a
special language. . . . .
Just as a mathematics text or written music communicates to a specially
trained group of readers, a computer program communicates to its own group
of readers. When seen in this light, the first amendment implications of
computer programs are no different from those of many other copyrightable
texts.
Alfred C. Yen, "A First Amendment Perspective on Idea/Expression Dichotomy
and Copyright in a Work's Total Concept and Feel," 38 Emory L.J. 393, 430
n.190 (1989). Examples of easily readable source code abound. See, e.g.,
Exhibit F, Decl. of Bernstein in Opposition to Defendants' Second Motion
for Summary Judgment. Yet even if lay people are unable to read more
complex programs, just as a lay person may not be able to read a symphony
score, such programs are readable and are read by computer scientists and
others are protected speech.
C. The Regulations Are A Prior Restraint On Protected Speech
The government acknowledges that its regulations prevent a professor of
mathematics from publishing his own ideas, expressed in computer
programming language, on the Internet. The government further admits, as
it must, that such publication would be fully protected speech if
accomplished in a book. Yet despite these admissions, the government
contends that its regulations do not have a close enough nexus to
expression or to conduct commonly associated with expression, to pose a
real and substantial threat of censorship. City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750 (1988). Instead, Defendants compare
the encryption controls to restrictions on sitting or lying on a sidewalk,
and cite as their primary authority Roulette v. City of Seattle, 97 F.3d
300 (9th Cir. 1996).
The government made the same assertion below, without success. The
District Court found that there is no legitimate comparison between the
ordinance in Roulette and the licensing scheme, and it quite properly
rejected the government's reliance on symbolic speech cases. Bernstein
III, slip op. at 23-24 ("The encryption regulations . . . are much more
like the regulation of newspaper racks than lying or sitting"); Bernstein
I, 922 F. Supp. at 1435 ("A computer program is so unlike flag burning and
nude dancing that defendants' reliance on conduct cases is misplaced.").
Indeed, in every case where this Court has considered a licensing scheme
directed at expression, like the one at issue here, it has applied the
body of law applicable to prior restraints, and not the symbolic speech
cases. This is nothing more than a straightforward application of the
bedrock principle that the most rigorous First Amendment protections apply
to licensing schemes that vest government officials with authority to
review and limit speech in advance.
Contrary to the government's assertions here, it is impossible to
separate the communicative from the noncommunicative attributes because
speech about cryptography (e.g., technology and technical data) is
expression, algorithms and source code are an integral part of academic
speech, and, as noted below, encrypted messages are themselves still
speech. The government's argument is not that these regulations are
unrelated to speech -- it is that encrypted speech, if used by the wrong
people for bad purposes, is too dangerous. Defendants are free to try to
persuade the Court that this is so, but it will require a far more
rigorous constitutional analysis than that set out in Roulette.
If conduct cases are to be triggered at all here, they can only be
so with the observation that any issues of "speech" and "conduct" are
inseparable. In cases such as this, the courts have rejected attempts to
uphold licensing schemes despite the argument that the license applied to
"a whole range of easily identifiable and constitutionally proscribable
conduct." These cases rejected the notion that a licensing scheme could
be upheld by separating the "noncommunicative elements" from the
communicative elements of an activity. They held that the activities were
"intertwined" so that regulation of one involved regulation of the other.
Riley, 467 U.S. at 963 n.11; Schaumberg, 444 U.S. at 632; Gaudiya
Vaishnava Society, 952 F.2d at 1065; See Lakewood, 486 U.S. at 762
(holding as "meaningless" the distinction of distributing newspapers "by a
machine rather than by hand").
D. Functional Speech is Still Speech
As noted above, the government's assertions regarding
"functionality" do not diminish the District Court's First Amendment
findings. Indeed, Defendants made the same arguments below, and the
District Court found that "functionality does not remove [encryption
software] from the realm of speech" or "`negate' its expressiveness."
Bernstein III, slip op. at 34-35 n.20. See also Bernstein I, 922 F. Supp.
at 1435 ("the functionality of a language does not make it any less like
speech"). Various kinds of instructions, recipes, manuals and technical
information "are often purely functional; they are also speech." Id.
For example, "[t]he music inscribed in code on the roll of a player piano
is no less protected for being wholly functional." Id.
The government here simply assumes that by labelling speech as a
"function" it may dispense with constitutional protections, as if running
an cryptographic program is akin to activating some kind of doomsday
device. But running an encryption program does not create a weapon; it
merely makes speech private. Accordingly, even under Defendants'
analysis, the "function" of an encryption program is to ensure speech is
transmitted only to the audience of the speaker's choosing. Thus, federal
law describes cryptography as a "method of secret writing," and
encryption systems as "[s]peech scramblers [and] privacy devices." In
the final analysis, encrypted speech is still speech, and the Supreme
Court has held repeatedly that the First Amendment protects private or
anonymous communications. McIntyre v. Ohio Elections Commission, 115 S.
Ct. 1511, 1516 (1995); City of Ladue v. Gilleo, 114 S. Ct. 2038, 2046
(1994); Talley v. California, 362 U.S. 60, 64 (1960). See Rosen v. City
of Portland, 641 F.2d at 1250-1252.
It is true that speech might be used to further bad ends, and
encrypted speech or source code is no different. A pen and paper can be
used to scribble a ransom note or a threat to assassinate the President.
Indeed, "[p]aper is a dangerous medium": "Hitler's `Mein Kampf' was
written on paper." Michael Kinsley, A Dangerous Medium, Washington Post,
April 16, 1997. The government's theory of "functionality" would permit
the licensing of typewriters because they might be used to produce
subversive tracts. Thomas Jefferson's cryptography would certainly be at
risk by virtue of its "functionality." Or, to take an example that would
resonate with those who crushed the student protests at Tienamen Square,
FAX machines should be controlled because they can function to aid
movements considered dangerous to state security.
Defendants seeks to exploit a fear of computer technology, but
their message is alien to our constitutional traditions. In upholding
First Amendment protection for anonymous speech, the Supreme Court has
reaffirmed the principle that "our society accords greater weight to the
value of free speech than to the dangers of its misuse." McIntyre, 115 S.
Ct. at 1524, citing Abrams v. United States, 250 U.S. 616, 630-631 (1919)
(Holmes, J., dissenting). In addition, the Supreme Court recently held
that distribution of speech over the Internet does not make it more
dangerous or diminish its level of constitutional protection. Reno v.
ACLU, 117 S. Ct. at 2344. The District Court correctly applied that
finding here, and found that the export controls, which place special
burdens on communication over the Internet, violate the First Amendment.
Bernstein III, slip op. at 25. The government's stay request does not
challenge these sound conclusions.
III. THE PUBLIC INTEREST DOES NOT FAVOR A STAY
Finally, the Government is wrong to contend that the public interest
militates in favor of granting a stay. In fact, precisely the opposite is
true. The public interest would be served by preventing the government
from imposing its standardless prior restraint on Professor Bernstein's
speech, not by continuing the restriction. Indeed, restrictions on the
First Amendment rights of citizens are inherently contrary to the public
interest. ACLU v. Reno, 929 F. Supp. 824, 851 (E.D. Pa. 1996)(opinion of
Sloviter).
Professor Bernstein is a professor of mathematics who wishes to engage in
scientific discussion and teaching activities in the field of
cryptography, including by use of cryptographic source code and by use of
the speech arena of the Internet. As the District Court found, the
encryption licensing regulations at issue here impede these scientific
activities. As the court explained with reference to a statement by the
American Academy for the Advancement of Science, enforcement of the
regulations
threaten[s] to undermine the essential features of scientific freedom and
the open exchange of information that are generally acknowledged as
critical to innovation in science and technology and are responsible in
large part for the preeminence of America's research and development
enterprise.
Bernstein III, slip op. at 24:2-4 (quoting AAAS statement). See also
Declaration of Prof. Appel of Princeton, Exhibit D, paras 11-17 (Internet
publication is important part of scientific development). Particularly
given that the Government does not -- and cannot -- identify any specific harm
that would arise from Professor Bernstein's publication of his scientific
work, the public interest clearly falls on the side of allowing him to
exercise his First Amendment rights.
CONCLUSION
For the foregoing reasons, the Government's emergency motion for a stay
pending appeal should be denied, and this appeal should be expedited.
Respectfully submitted,
McGLASHAN & SARRAIL
Professional Corporation
By________________________
CINDY A. COHN
Dated: September 17, 1997 Attorneys for Plaintiff-Appellee