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You may have read about a recent court decision regarding encryption exports. Please be advised that this decision does not mean that encryption products may be exported without regard to the Export Administration Regulations (EAR). Regardless of how the decision might be interpreted, the decision is subject to a stay. This stay is in effect for at least 45 days. (See Department of Justice press release.)
On May 6, the U.S. Court of Appeals for the Ninth Circuit rendered a decision in Bernstein v. The United States Department of Justice. Professor Daniel Bernstein filed suit against the U.S. Government after he was notified by the State Department that his "Snuffle" encryption program was subject to the International Traffic in Arms Regulations (ITAR) and would require an export license to post the source code on the Internet. Bernstein subsequently amended his petition to challenge the controls on encryption products maintained under the EAR after President Clinton placed encryption exports under the Commerce Department’s jurisdiction in 1996. In a 2-1 decision, the Ninth Circuit court upheld the district court’s decision that the regulation of Bernstein’s export of his "Snuffle" program "constitute[s] an impermissible prior restraint on speech."
Exporters should be aware that the decision does not affect the applicability of the EAR to exports and reexports of encryption hardware and software products or encryption technology. This includes controls on the export of encryption software in source code. The EAR remain in effect for these items. The Commerce Department will apprise exporters of any changes to the encryption controls.