With the support of the Electronic Frontier Foundation (EFF), Bernstein filed a lawsuit against the U.S. government, arguing that the export controls violated his First Amendment rights.

[1][2] The case was first brought in 1995, when Bernstein was a student at University of California, Berkeley, and wanted to publish a paper and associated source code on his Snuffle encryption system.

Bernstein was represented by the Electronic Frontier Foundation, who hired outside lawyer Cindy Cohn and also obtained pro bono publico assistance from Lee Tien of Berkeley; M. Edward Ross of the San Francisco law firm of Steefel, Levitt & Weiss; James Wheaton and Elizabeth Pritzker of the First Amendment Project in Oakland; and Robert Corn-Revere, Julia Kogan, and Jeremy Miller of the Washington, DC, law firm of Hogan & Hartson.

After four years and one regulatory change, the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional.

Companies and individuals exporting items on the munitions list, including software with encryption capabilities, had to obtain prior State Department approval.The government requested en banc review.