> What do we have to expect next? US hackers again not allowed to work > on or "export" open source software?
Warning: I am not a lawyer. But that's okay, because this law firm doesn't appear to have any lawyers, either. In 1995, Dan Bernstein wanted to electronically publish an academic paper and supporting source code which implemented a cryptosystem. Under the regulations in place in '95, this was a violation of ITAR and EAR, the two comprehensive set of rules that govern how munitions and sensitive information may be exported. Bernstein filed a lawsuit claiming this was a violation of his First Amendment right to speak freely. The trial court, administered by Judge Marilyn Patel, agreed with Bernstein. So did the appellate court (Judges Bright, Fletcher and Nelson). The government asked for a third level of appeal, the so-called "en banc review." [1] The appellate court withdrew their decision pending the en banc review -- but at the last minute the government changed the ITAR and EAR regulations in ways that would let Bernstein post his source code, so the entire case became moot. There's another case that's on-point here -- _Junger v Daley_, coming out of the Sixth Circuit in ... uh ... I don't know: '96? The decision came down in 2000, at any rate. The Sixth Circuit held that source code is protected by the First Amendment. The government has no more authority to prevent a U.S. person from publishing source code internationally than it would have authority to prevent a U.S. person from sending a painting to the Louvre, or a copy of a book to a friend overseas. So, yeah. I am not in any way worried. The U.S. government has argued *five times* in federal court that libre hackers may be prohibited from sharing our source code internationally... and *five times* the federal courts have smacked it down as unconstitutional. There's a lot of precedent protecting libre hackers. For once, the system worked the way it's supposed to. [1] The United States federal judicial system is broken up into what are called "circuits". California, Hawai'i, Alaska, Oregon, Washington and some other states comprise the Ninth Circuit. In every circuit but the Ninth, en banc review means *every* appeals judge on the circuit is asked to weigh in on a decision. The Ninth Circuit is so large, though, that polling every appellate judge is considered impractical. Instead, in the Ninth Circuit an en banc hearing means the case is heard before 11 different appellate judges. If you get the idea en banc review is a big deal, you're right. Very few cases receive en banc review, and those are usually ones that the appellate court believes are making a beeline for SCOTUS. The reason why I called it the "so-called 'en banc review'" is because it's a misnomer. In the Ninth Circuit, an en banc review isn't really an en banc review -- it's just 11 judges, not all 45. _______________________________________________ Gnupg-users mailing list [email protected] http://lists.gnupg.org/mailman/listinfo/gnupg-users
