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.