by Stewart Baker
[email protected]
Last week a three judge panel of the Ninth Circuit U.S. Court of Appeals heard the government's appeal of the district court decision in the Bernstein case. This was an appeal of the August ruling by Judge Marilyn Hall Patel of the U.S. District Court in San Francisco, who found the Commerce Department export controls on encryption source code and software to be an unconstitutional prior restraint on free speech.
According to the reports of the oral arguments, the judges appeared skeptical of the government's arguments in support of encryption controls. Even so, it is unlikely that the Ninth Circuit will strike down all export controls. If it does find in favor of Bernstein, its holding will likely be narrowly tailored. In any case, any decision against the government almost certainly will be appealed to the Supreme Court.
