FC: Government asks for delay in 9th circuit encryption lawsuit

[Declan McCullagh <declan () well com>]

The government's goal is simple: Delay, delay, delay. So far the circuit
court and trial court have ruled against the Clinton administration so it's
a fair bet to say they'll ultimately lose. But they show no signs of giving
up. Background:
  http://www.wired.com/news/politics/0,1283,20333,00.html

-Declan

*******

Date: Mon, 18 Oct 1999 17:25:09 -0700
From: Cindy Cohn <Cindy () mcglashan com>
Subject: Bernstein case:  govt moves for a continuance of en banc
  argument
:
:

Today the government asked the 9th Circuit en banc panel for further 
briefing and a delay in the oral argument date (currently set for December 
16, 1999) based upon the fact that it will issue revised encryption 
regulations on December 15, 1999.

Although admitting that the new regulations may "not materially change the 
treatment of source code" the government has told the Court that "it is 
possible that the revised regulations will alter the treatment of source 
code in ways that could have a bearing on the constitutional issues before 
this Court."

Addressing the fact that the public pronouncements about the new 
regulations, including the "Questions and Answers" page of the BXA web 
site  (www.bxa.doc.gov/Encryption/q%26a99.htm), state that source code will 
not be affected by the changed regulations, the government said "That 
document does not reflect the review that is currently taking place."

Bernstein will oppose the motion, on the grounds that the mere 
"possibility" that the regulations will impact source code is insufficient 
to grant a further delay of this case, especially since:

        1.  The courts have held that the regulations constitute a prior restraint 
on speech,
        2.  Professor Bernstein has now been waiting over 7 years to publish his 
program, and
        3.  The government already enjoyed an 8 month delay in this case when it 
issued revised regulations that did             not materially affect the case in 1997.

Bernstein's opposition should be filed by October 29.

Cindy
***************************************
Cindy A. Cohn, Cindy () McGlashan com
McGlashan & Sarrail, P.C.
177 Bovet Road, 6th Floor
San Mateo, CA 94402
(650) 341-2585 (tel)
(650) 341-1395 (fax)



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