Bernstein v. United States Department of Justice

Bernstein was not entitled to bring a facial First Amendment challenge to the EAR, and the district court improperly granted an injunction on the basis of a facial challenge. I therefore respectfully dissent.

The basic error which sets the majority and the district court adrift is the failure to fully recognize that the basic function of encryption source code is to act as a method of controlling computers. As defined in the EAR regulations, encryption source code is “[a] precise set of operating instructions to a computer, that when compiled, allows for the execution of an encryption function…