Stay of injunction issued in Bernstein case (CNET)

   Injunction blocked in crypto case
   By Dan Goodin
   August 29, 1997, 1:15 p.m. PT
   
   A federal judge has temporarily blocked an injunction issued earlier
   this week in a closely watched case testing government restrictions on
   the export of encryption, an attorney involved in the case said today.
   
   On Monday, U.S. District Court Judge Marilyn Hall Patel issued an
   order forbidding the government from prosecuting plaintiff Daniel
   Bernstein, or anyone else, for posting Bernstein's encryption program
   on the Internet or otherwise allowing it to be transported outside of
   the United States. Federal law provides substantial criminal penalties
   for the export of strong encryption without a license.
   
   Following an emergency appeal made yesterday by attorneys from the
   Justice Department, Patel stayed the injunction pending its appeal,
   according to a statement released by Cindy Cohn, an attorney
   representing Bernstein.
   
   "This eliminates, at least for the meantime, the injunctive relief
   granted to Bernstein as to any other computer programs which he may
   have developed or otherwise wished to publish," the statement said.
   "It also eliminates the protections for persons other than Professor
   Bernstein."
   
   Cohn added that Patel agreed to formally issue a stay in early
   September that will reinstate a small part of the injunction, which
   will allow Bernstein to export the most recent version of his program,
   called Snuffle, without fear of prosecution. The injunction would not
   apply to any other person, she said.
   
   Such stays are fairly common in cases that test novel concepts and
   where a party can argue that irreparable harm may result, said Michael
   Froomkin, an associate professor at University of Miami law school.
   
   "I would be shocked if the court didn't issue a stay pending appeal,"
   he added.
   
   "Given the significance of the policy matters involved, the status quo
   in this action should be maintained until the constitutional questions
   at issue are finally resolved," government attorneys argued in its
   motion for the appeal. The government fears that law enforcement and
   national security could be seriously compromised if encryption
   technology isn't controlled.
   
   The stay means that Net sites that fall under U.S. jurisdiction are
   required to pull Snuffle, but it's unclear what practical effect the
   order will have. The program has been widely available on the Net for
   years, including at
   "ftp://coast.cs.purdue.edu/pub/tools/unix/snuffle.shar."
   
   A number of sites also disseminated the program worldwide during the
   two-and-a-half days it was it was legal to do so. A member of Counsel
   Connect posted the software on the online service for attorneys but
   pulled it after hearing of the stay. In addition, a group from Canada
   emailed Snuffle to hundreds of thousands of Internet addresses outside
   the United States using a popular bulk emailing program, according to
   one cryptography advocate who requested anonymity.
   
   There's "not much effect as far as Snuffle goes," crypto advocate John
   Young told CNET via email. "Its availability seems to have been widely
   known in the crypto community worldwide," added Young, who posts
   frequently about encryption on the Net.
   
   Attorneys for Bernstein and from the Justice Department were
   unavailable for comment. A spokeswoman from the Commerce Department,
   which administers the restrictions, said she didn't know what action
   the agency intends to take against U.S. sites that post Snuffle.
   
   According to Young, however, Justice has been monitoring his Web site,
   which also posted Snuffle while Patel's injunction was in effect.
   
   Reuters contributed to this report.
   
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