Re: [Fw: Jospin's Crypto coup] & functional vs. expressive

Kragen Sitaker (
Wed, 26 May 1999 09:58:14 -0400 (EDT)

Dave Long write:
> As I read it, the Bernstein v. USDOJ decision[1] was based
> not upon the protected nature of crypto code as expression,
> but upon the unconstitutional nature of EAR's prior restraint.

By my reading, there were several issues:
a- did Bernstein have standing to bring the suit?
b- was the regulation a prior restraint of speech?
c- if so, was it unconstitutional?

(a) apparently depended on whether or not the Snuffle source code
constituted speech. (b), I think, depended on whether or not any
cryptographic source code -- possibly including Snuffle -- constituted
speech. (c) depended on the unbridled discretion granted to government
officials, on the absence of judicial review, and on something else I
can't remember at the moment.

The court answered all three questions in the affirmative. The dissent
answered (a) in the negative, and seemed to suggest that the answer to
(b) was negative.

<>       Kragen Sitaker     <>
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