Free Speech -- 1999



Bernstein v. U.S. Dep't of Commerce   (9th Circuit)

Government regulation of business communication

On May 6, 1999, the Ninth Circuit ruled that Commerce Department restrictions on the export of encryption software in source code constitute a prior restraint on speech in violation of the First Amendment. The challenged regulations put an unconstitutional burden on scientific expression and vested "boundless discretion" in government officials, without adequate safeguards. On September 30, 1999, the full Ninth Circuit Court of Appeals agreed to rehear arguments in this case prior to any further appeals, but the government substantially relented on its regulations thereafter. The case has been sent back to the 3-judge panel of the Ninth Circuit to reconsider what to do.

The NAM is the only major business group to support this challenge to export controls on encryption software. It is a major case affecting corporate secrecy, secure worldwide communications and the development of electronic commerce.