Let's hope that no one can squeeze enough from this poor and
puny anonymity to turn the color of legal litmus paper.
As I read it, the Bernstein v. USDOJ decision[1] was based
not upon the protected nature of crypto code as expression,
but upon the unconstitutional nature of EAR's prior restraint.
However, the Near v. Minnesota decision[2] states that although
prior restraint may be repugnant to the first amendment, it is
defensible in cases of national security.
Also, if crypto code can be deemed a clear and present danger to
the state, the state then has the option to prosecute publishers,
even if it may not impose prior restraint upon publication.
Whitney v. California [3] is an unsettling precedent. Miss Whitney
was convicted and sentenced to imprisonment on the charge that she
"knowingly became a member of an organization, society, group,
and assemblage of persons organized and assembled to advocate, teach,
aid and abet criminal syndicalism". (the Communist Labor Party of
California)
Now, there were some fine words written in this decision:
>Those who won our independence by revolution were not cowards. They did not
>fear political change. They did not exalt order at the cost of liberty. To
>courageous, selfreliant men, with confidence in the power of free and
fearless
>reasoning applied through the processes of popular government, no danger
>flowing from speech can be deemed clear and present, unless the incidence of
>the evil apprehended is so imminent that it may befall before there is
>opportunity for full discussion.
...
>Thus, a state might, in the exercise of its police power, make any trespass
>upon the [274 U.S. 357, 378] land of another a crime, regardless of the
>results or of the intent or purpose of the trespasser. It might, also, punish
>an attempt, a conspiracy, or an incitement to commit the trespass. But it is >
hardly conceivable that this court would hold constitutional a statute which >
punished as a felony the mere voluntary assembly with a society formed to >
teach that pedestrians had the moral right to cross uninclosed, unposted, >
waste lands and to advocate their doing so, even if there was imminent danger >
that advocacy would lead to a trespass. The fact that speech is likely to >
result in some violence or in destruction of property is not enough to justify
>its suppression.
Sounds good for the crypto camp, right? Here's the kicker:
>The fact that speech is likely to result in some violence or in destruction
of >property is not enough to justify its suppression. There must be the >
probability of serious injury to the State.
With the premise that injury to the State is given more weight
than injury to its people or their property, they upheld the conviction.
Similar language is found in Haig v. Agee [5]:
>Matters intimately related to foreign policy and national security are
>rarely proper subjects for judicial intervention.
and
>It is "obvious and unarguable" that no governmental interest is more
>compelling than the security of the Nation. Aptheker v. Secretary of State,
>378 U.S., at 509; accord Cole v. Young, 351 U.S. 536, 546 (1956); see Zemel,
>supra, at 13-17. Protection of the foreign policy of the United States
>is a governmental interest of great importance, since foreign policy and
>national security considerations cannot neatly be compartmentalized.
Of course, it seems unlikely the statement can be taken seriously
unless the French state seems in danger of ending. Glancing at
<http://www.premier-ministre.gouv.fr/>, <http://www.assemblee-nat.fr/>,
and <http://www.elysee.fr/> shows a government worried about many
things, but being reduced to a cipher by cryptography is not among them.
-Dave
[note: Earl Warren, of Warren Court fame, was been the only person in CA to be
elected, unopposed, to the governorship. He managed this by winning both the
Democrat and Republican primaries (as well as the Progressive?), thereby
making the general election moot. Why does centrism seem so rare in American
politics?]
[1]http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/Legal/19990506_cir
cuit_decision.html
>We find that the EAR regulations (1) operate as a prepublication licensing >
scheme that burdens scientific expression, (2) vest boundless discretion in >
government officials, and (3) lack adequate procedural safeguards. >
Consequently, we hold that the challenged regulations constitute a prior >
restraint on speech that offends the First Amendment.
[2]http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=283&invol=697
>The objection has also been made that the principle as to immunity from >
previous restraint is stated too [283 U.S. 697, 716] broadly, if every such >
restraint is deemed to be prohibited. That is undoubtedly true; the protection
>even as to previous restraint is not absolutely unlimited. But the limitation
>has been recognized only in exceptional cases. 'When a nation is at war many >
things that might be said in time of peace are such a hindrance to its errort >
that their utterance will not be endured so long as men fignt and that no >
Court could regard them as protected by any constitutional right.' Schenck v. >
United States, 249 U.S. 47, 52, 39 S. Ct. 247, 249. No one would question but >
that a government might prevent actual obstruction to its recruiting service >
or the publication of the sailing dates of transports or the number and >
location of troops. 6 On similar grounds, the primary requirements of decency >
may be enforced against obscene publications. The security of the community >
life may be protected against incitements to acts of violence and the >
overthrow by force of orderly government. The constitutional guaranty of free >
speech does not 'protect a man from an injunction against uttering words that >
may have all the effect of frce. Gompers v. Buck's Stove & Range Co., 221 U.S.
>418, 139, 31 S. Ct. 492, 34 L. R. A. (N. S.) 874.' Schenck v. United States, >
supra.
[3]http://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=274&invol=357
[4]http://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=414&invol=105
[5]http://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=453&invol=280