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Bernstein v. United States Department of Justice

United States Court of Appeals for the Ninth Circuit
176 F.3d 1132 (1999)


Daniel Bernstein (plaintiff) was a Ph.D. student who created an encryption method he called “Snuffle.” Bernstein sought to present his work on Snuffle within the academic and scientific communities. Bernstein asked the United States government (defendant) whether he needed a license to publish Snuffle in either its paper form or the coded computer-program form. The government responded that Snuffle was a munition under a federal regulation controlling the export of encryption software, and that Bernstein would need a license for Snuffle in any form. Bernstein sued, challenging the constitutionality of the regulation. Bernstein argued that the source code used to create Snuffle was protected speech under the First Amendment. The government argued that because source code has a functional application in addition to its expressive application, source code falls outside of the First Amendment protections.

Rule of Law


Holding and Reasoning (Fletcher, J.)

Dissent (Nelson, J.)

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