Venable's NII Reporter
VOL. 3, No. 3 Jan. 22,1996
Venable's NII Reporter is an electronic publication of the Information Law Group covering the significant legal and public policy issues encountered on the Information Superhighway. This publication highlights topical issues affecting information providers and users of cyberspace. Readers are encouraged to use the feedback form, or E-mail, to suggest additional topics, provide additional news items, or respond to comments in the publication.
Export Control Litigation
We have previously reported in Volumes1 and 2 on the administrative decisions of the Department of State concerning export of the bookApplied Cryptography and a diskette containing the source code for several cryptographic algorithms published in the book.Venable is serving as counsel to Phil Karn, the individual who unsuccessfully sought permission to export the diskette, having already received permission to export the book. The entire set of trial court pleadings, together with copies of the prior administrative appeals, is available from Mr. Karn's Website.
On September 20, 1996, we filed our opening brief.
On November 6, 1996, the Department of Justice filed its Brief for the Appellees.
On November 27, 1996, we filed our Reply Brief.
On January 3, 1997, the Department of Justice filed a Supplemental Brief containing the Government's view of the effect of the recent change in jurisdiction from the Department of State to the Department of Commerce.
On January 8, 1997, we filed a Supplemental Brief responding to the Government filing.
On January 10, 1997, the Court heard oral arguments and issued its decision on January 21, 1997. The text of the decision follows:
NO. 96-5121
________________________________________________________________
_________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________
PHILIP R. KARN, Jr.,
Plaintiff-Appellant,
v.
DEPARTMENT OF STATE and THOMAS E. McNAMARA,
Defendants-Appellees.
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________
Before: Williams, Ginsburg, and Rogers, Circuit Judges
____________________
JUDGMENT
_________________________________________________________________
In light of the recent Executive Order transferring regulatory authority of non-military cryptographic computer source code to the Commerce Department, and the Commerce Department's promulgation of a new regulation under the authority of the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., we remand this case to the district court to consider the reviewability of and, if appropriate, the merits of appellant's claim under the Administrative Procedure Act. Because "basic tenets of judicial restraint and separation of powers call upon [the court] first to consider alternative grounds for resolution" when the court is asked to answer a question involving the Constitution of the United States, Lamprecht v. FCC, 958 F.2d 382, 389-90 (D.C. Cir. 1992), we do not reach the constitutional issues raised by this appeal.
The clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41(a)(2). This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.
Per Curiam
FORTHECOURT
Mark J. Langer, Clerk
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