>> _Bernstein_ case. In short, the US Government is asking the court to
>> postpone oral argument in the case until the US Government has revealed
>> the new regulations, promised for release on December 15 1999.
>
> Which shouldn't be relevant since his rights were impacted under the *old*
> law. Even if the new regulations do permit unlimited export of crypto then
> he'd still have a reason to push the case.
Since Bernstein is primarily asking that the law & regs be changed
(struck down as unconstitutional), if the government changes them
itself to be constitutional, then a large part of the case would be
won.
However, the chance of that is vanishingly slim. First, a big problem
is in the statute, which BXA can't change, only Congress & the Pres
can. It eliminates judicial review of BXA decisions, yet all
permanent free-expression suppression decisions MUST be made by a
court. Second, a fundamental constitutional problem with the export
controls is that they require that you ask the government for a
license *before* you publish something, rather than merely trying to
punish you later if you err. (A "prior restraint"). The so-called
liberalization we're promised did not alter this scheme; they want you
to go through a "one-time review" before they'll issue you a license
to publish your software. Tinkering with the source code and
technical assistance rules will not change this. It would be a
fundamental restructuring, eliminating all that lovely administrative
discretion so near and dear to NSA's heart. The discretion to deny
licenses arbitrarily (or extend your "one-time review" into taking
infinite time), in unpublished decisions, means that the regs don't
actually have to say what the rules are; they can make them up as they
go along. This is why we seek to end this discretion (and why courts
back us up, in cases involving free expression).
I encourage everyone to jump up and down and tell BXA to reform all
the unconstitutional parts while they're messing around in there. Who
knows, it might work. But I don't see their motion to put off the
appeal hearing as anything more than their usual delaying-the-
inevitable tactic. You can call me a cynic; I think of it as years of
experience at NSA-watching. Sure, they'll revise the regs by Dec 15,
change the source code rules, even make them constitutional. And pigs
will learn to sing. We'd better wait til next year just to be sure, eh?
The government is always free to revise the regulations at any time.
It has known in gory detail what constitutional problems exist, since
1984 (http://www.eff.org/bernstein/Legal/950922_tien.exhibits/).
It is always free to consider making them constitutional. But it has
never yet done so.
John
