I just read the opinion. These judges actually *got* it! Or at least
two of them did, judges Bright and Fletcher. There's some marvelous
stuff in their opinion, such as the observation that Bernstein's code
had more than a little political expression to it since by showing how
to turn a hash function (which isn't regulated) into a cipher (which
is) he meant to demonstrate the arbitrary and silly nature of the
regulations.
Judge Nelson unfortunately bought the government's bogus claim that
crypto source code was more like a machine than speech, claiming that
"Only a few people can actually understand what a line of source code
would direct a computer to do." But even Nelson did not say he'd
definitely uphold the regulations as constitutional; he just thought
Bernstein should have used a different legal theory to argue his case.
Phil
