CINDY A. COHN, ESQ.; SBN 145997 McGLASHAN & SARRAIL Professional Corporation 177 Bovet Road, Sixth Floor San Mateo, CA 94402 Telephone (415) 341-2585 (Fax) 341-1395 Attorneys for DANIEL J. BERNSTEIN IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN ) Case No. C 95-0582-MHP an individual, ) ) Plaintiff, ) ) v. ) COMPLAINT ) (Declaratory Relief, UNITED STATES DEPARTMENT ) Injunctive Relief) OF STATE; THE UNITED STATES ) ARMS CONTROL & DISARMAMENT ) AGENCY; UNITED STATES ) DEPARTMENT OF DEFENSE; ) UNITED STATES DEPARTMENT OF ) COMMERCE; NATIONAL SECURITY ) AGENCY; WARREN G. CHRISTOPHER; ) WILLIAM B. PERRY; RONALD ) BROWN; ADMIRAL J. M. ) McCONNELL; JOHN B. HOLUM; ) WILLIAM G. ROBINSON; CHARLES ) RAY; GARY M. ONCALE; ) AMBASSADOR MICHAEL NEWLIN; ) MARK KORO; GREG STARK; ) and DOES 1-100, Inclusive, ) ) Defendants. ) ) TABLE OF CONTENTS A. INTRODUCTION . . . . . . . . . . . . . . . . . . . .1 B. JURISDICTION . . . . . . . . . . . . . . . . . . . .2 C. VENUE . . . . . . . . . . . . . . . . . . . . . . .2 D. PARTIES . . . . . . . . . . . . . . . . . . . . . .3 (1) Individual Defendants Allegations . . . . . . .7 E. REGULATORY CONTEXT . . . . . . . . . . . . . . . . .9 (1) Key ITAR Definitions . . . . . . . . . . . . 11 (2) Public Domain Exception . . . . . . . . . . 12 (3) Scienter . . . . . . . . . . . . . . . . . . 13 (4) Judicial Review . . . . . . . . . . . . . . 13 (5) ITAR's Purported Policy For Designating And Determining Defense Articles And Services . . . . . . . . . . . . . . . . 14 F. FACTS . . . . . . . . . . . . . . . . . . . . . . 14 (1) CJ 191-92 . . . . . . . . . . . . . . . . . 16 (2) Plaintiff Attempts To Separate The Scientific Paper From The Computer Program . . . . . . . . . . . . . . 17 G. RESULT OF DEFENDANTS' REJECTION OF PLAINTIFF'S CJ REQUEST . . . . . . . . . . . . . . 18 H. CHILLING EFFECT ON PLAINTIFF . . . . . . . . . . . 19 I. CHILLING EFFECT ON OTHERS . . . . . . . . . . . . 19 J. CRYPTOLOGY IS A CURRENT ISSUE OF PUBLIC DEBATE . . 20 GENERAL ALLEGATIONS . . . . . . . . . . . . . . . . . 22 COUNT I (UNCONSTITUTIONAL PRIOR RESTRAINT) . . . . . . 23 COUNT II (CJ REQUEST PROCESS IS UNCONSTITUTIONAL) . . 26 COUNT III (REGISTRATION PROCESS IS UNCONSTITUTIONAL) . 29 COUNT IV (LICENSE PROCEDURES ARE UNCONSTITUTIONAL) . . 30 COUNT V (THE AECA AND ITAR ARE VAGUE) . . . . . . . . 32 COUNT VI (THE AECA AND ITAR ARE OVERBROAD) . . . . . . 36 COUNT VII (CONTENT RESTRICTIONS/SUBSEQUENT PUNISHMENT) 41 COUNT VIII (RIGHT TO RECEIVE/FREEDOM OF ASSOCIATION) . 43 COUNT IX (FIRST AMENDMENT EQUAL PROTECTION/ VIEWPOINT-DISCRIMINATION) . . . . . . . . . . . . . 44 COUNT X (ADMINISTRATIVE PROCEDURES ACT) . . . . . . . 46 Plaintiff is informed and believes and thereon alleges as follows: A. INTRODUCTION 1. Plaintiff brings this action to have declared and adjudged unconstitutional, and to enjoin the enforcement of, certain statutes and regulations of the United States, and policies, practices and conduct of Defendants, described below, which prohibit Plaintiff from publishing or publicly discussing or circulating a scientific paper, algorithm or computer program in the field of mathematics commonly known as cryptology. 2. At issue in this case are: Chapter 39, Section III, of the Arms Export Control Act of 1976 ("AECA"), 22 U.S.C. 2778 et. seq., including 22 U.S.C. 2780, and the regulations promulgated under their authority and which implement them, known as the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Para. 120 et seq. 3. Chapter 39 of the AECA and the ITAR are unconstitutional both on their face and as applied to Plaintiff's desired and intended conduct of publishing a scientific paper, algorithm or computer program. The statute and regulations at issue are defective, among other reasons, because they are susceptible to being applied, and in fact have been applied, to prevent and inhibit speech protected by the First Amendment and because they vest unfettered discretion in officials without adequate procedural safeguards as required by the Fifth Amendment. 4. This is also an action to redress the deprivation under color of statute, regulations, custom and usage of rights, privileges and immunities secured to Plaintiff by the Constitution of United States, namely, the right to exercise freedom of speech under the First Amendment and the right to procedural due process under the Fifth Amendment. 5. This is also an action pursuant to the Administrative Procedures Act, 5 U.S.C. 551 et seq., to challenge improper agency action of an agency of the United States. B. JURISDICTION 6. The jurisdiction of this Court over the subject matter of this action is predicated on 28 U.S.C. 1331 in that this claim arises under the Constitution and laws of the United States. 7. This action is authorized by 28 U.S.C. 2201-2202, and 5 U.S.C. 701-706. Plaintiff is suffering violations of his constitutional rights because of the final agency action by the Defendants promulgating, enforcing and interpreting the ITAR and is aggrieved by such action. This is a case of actual controversy which requires a declaration with respect to the invalidity of the said regulations as alleged in this Complaint. C. VENUE 8. Plaintiff resides in this judicial district and venue is proper in this district pursuant to 28 U.S.C. 1391(e), in that the causes of action alleged involve agencies, officers and employees of the United States acting under color of legal authority and concern challenged action of an administrative agency of the United States. D. PARTIES 9. At all times relevant to this action, Plaintiff DANIEL J. BERNSTEIN ("MR. BERNSTEIN") was and is an individual residing in Alameda County, California. MR. BERNSTEIN is a graduate student in mathematics at the University of California at Berkeley and is the author of the Items. 10. At all times relevant to this action, Defendant UNITED STATES DEPARTMENT OF STATE was and is an agency of the government of the UNITED STATES. The DEPARTMENT OF STATE was and is delegated to promulgate and administer regulations under the AECA pursuant to Executive Order 11958 as amended (42 C.F.R. 4311). 11. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant ARMS CONTROL & DISARMAMENT AGENCY was and is an agency of the government of the UNITED STATES and was and is delegated to coordinate with the Defendant STATE DEPARTMENT in promulgating and administering regulations under the AECA pursuant to 22 U.S.C. 2778(2). 12. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant DEPARTMENT OF DEFENSE was and is an agency of the government of the UNITED STATES and was and is delegated to coordinate and concur with and in fact does coordinate and concur with the Defendant STATE DEPARTMENT in promulgating and administering regulations under the Arms Export Control Act 28 U.S.C. 2778(7) and ITAR 120.2. 13. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant U.S. DEPARTMENT OF COMMERCE was and is an agency of the government of the UNITED STATES and was and is delegated to coordinate and concur with and in fact does coordinate and concur with the Defendant STATE DEPARTMENT in promulgating and administering regulations under the Arms Export Control Act. 14. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant NATIONAL SECURITY AGENCY was and is an agency of the government of the UNITED STATES and was and is delegated to coordinate and concur with and in fact does coordinate and concur with the Defendant STATE DEPARTMENT in promulgating and administering regulations under the Arms Export Control Act. 15. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that Defendant WARREN CHRISTOPHER was and is the United States Secretary of State. By virtue of that office, Defendant CHRISTOPHER is responsible to oversee the promulgation and administration of the above-mentioned regulations. 16. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that Defendant WILLIAM B. PERRY was and is the United States Secretary of Defense. By virtue of that office, Defendant PERRY is responsible to oversee the promulgation and administration of the above-mentioned regulations. 17. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that Defendant RONALD BROWN was and is the United States Secretary of Commerce. By virtue of that office, Defendant BROWN is responsible to oversee the promulgation and administration of the above-mentioned regulations. 18. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that Defendant ADMIRAL J. M. McCONNELL was and is the head of the NATIONAL SECURITY AGENCY. By virtue of that office, Defendant McCONNELL is responsible to oversee the promulgation and administration of the above-mentioned regulations. 19. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that Defendant JOHN D. HOLUM was and is the Director of the Arms Control and Disarmament Agency. By virtue of that office, Defendant HOLUM is responsible to oversee the promulgation and administration of the above-mentioned regulations. 20. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant WILLIAM G. ROBINSON served as Director of the Office of Defense Trade Controls of the Bureau of Politico-Military Affairs within the STATE DEPARTMENT and was one of the persons responsible for interpreting, applying and administering the ITAR regulations as applied to Plaintiff. 21. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant CHARLES RAY served in the Office of Defense Trade Controls of the Bureau of Politico-Military Affairs within the STATE DEPARTMENT and was one of the persons responsible for interpreting, applying and administering the ITAR regulations as applied to Plaintiff. 22. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant GARY M. ONCALE served in the Office of Defense Trade Controls of the Bureau of Politico-Military Affairs within the STATE DEPARTMENT and was one of the persons responsible for interpreting, applying and administering the ITAR regulations as applied to Plaintiff. 23. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant MICHAEL NEWLIN served as Acting Director of the Center for Defense Trade of the STATE DEPARTMENT and was one of the persons responsible for interpreting, applying and administering the ITAR regulations as applied to Plaintiff. 24. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant GREG STARK served as an official of the NATIONAL SECURITY AGENCY and was one of the persons responsible for interpreting, applying and administering the ITAR regulations as applied to Plaintiff. 25. At all times relevant to this action, Plaintiff is informed and believes and upon such information and belief alleges that the Defendant MARK KORO served as an official of the NATIONAL SECURITY AGENCY and was one of the persons responsible for interpreting, applying and administering the ITAR regulations as applied to Plaintiff. (1) Individual Defendants Allegations 26. Each individual Defendant is sued individually and in his official capacity. Relief is sought against each Defendant as well as his agents, assistants, successors, employees, attorneys, and all persons acting in concert or cooperation with them or at their direction or under their control. 27. The individual Defendants have been, are presently, and will be acting under the color of authority and law of the United States of America. All of the individual Defendants are and will be at all times relevant in this complaint engaged in the enforcement and execution of the laws of the United States of America and more particularly 22 U.S.C. 2751 et. seq. and the regulations promulgated thereunder, under which Plaintiff is threatened with prosecution. The individual Defendants are responsible for the enforcement and execution of these statutes and regulations generally in the United States against the Plaintiff and others similarly situated. 28. The individual Defendants, under color of authority and law of the United States of America, purposefully have caused or permitted the Plaintiff to be subjected to the deprivation of rights, privileges and immunities secured to them by the Constitution and laws of the United States. Actions or threatened actions by the individual Defendants are outside the scope of their authority and contrary to law. 29. The true names and capacities, whether individual, corporate, associate or otherwise, of Defendants named herein as DOES ONE through ONE HUNDRED inclusive, and each of them, are unknown to Plaintiff who therefore sues said Defendants by such fictitious names. For example, during the course of discovery Plaintiff may discover that other agencies and individuals were involved in interpreting, administering and applying the statute and regulations in question. When the true names and capacities of said Defendants are ascertained, Plaintiff will amend this Complaint by inserting the true names and capacities in place of the fictitious names, pursuant to Federal Rule of Civil Procedure 19. 30. Plaintiff is informed and believes and upon such information and belief alleges that DOES ONE through ONE HUNDRED, inclusive, and each of them, are legally responsible in some manner for the events and happenings referred to herein, and proximately caused or contributed to the harm hereinafter alleged by Plaintiff. Wherever in this Complaint any Defendant is the subject of any charging allegation by Plaintiff, it shall be deemed that the Defendants DOES ONE through ONE HUNDRED, inclusive, and each of them, are likewise the subject of said charging allegation. 31. Plaintiff is informed and believes and upon such information and belief alleges that at all times herein mentioned, each of the Defendants was a partner, joint venturer, agent, servant, and/or employee of each of the remaining Defendants and was, in the doing of things herein complained of, acting within the course and scope of such partnership, joint venture, agency, service and/or employment and therefore is liable to Plaintiff as hereinafter alleged. E. REGULATORY CONTEXT 32. The Arms Export Control Act of 1976, 22 U.S.C. 2778 et seq. ("AECA") authorizes the President "to control the import and the export of the defense articles and defense services" 22 U.S.C. 2778(a)(1). 33. Pursuant to the AECA, the Defendants have promulgated the International Traffic in Arms Regulations ("ITAR") 22 C.F.R. 120-130. ITAR Section 121.1 lists "defense articles" to be controlled under the AECA and ITAR, and is called the United State Munitions List. 34. In addition to the "defense articles" specifically included on the Munitions List, ITAR 120.9(1) and (2) define "defense services" as (1) "[T]he furnishing of assistance (including training) to foreign persons" with respect to a "defense article," and (2) "[t]he furnishing to foreign persons of any technical data controlled under this subchapter, whether in the U.S. or abroad." 35. ITAR 127.1(a)(1) states: "It is unlawful to export or attempt to export from the United States any defense article or technical data or to furnish any defense service for which a license or written approval is required by this subchapter without first obtaining the required license or written approval from the Office of Defense Trade Controls." 36. The regulatory ITAR scheme on its face and as applied to Plaintiff, requires that Plaintiff and similarly situated others submit to four prior restraints as follows: 37. First, ITAR 120.4 requires that where speech is involved, the speaker submit a request to see if a license is required. This is called a Commodity Jurisdiction Request ("CJ Request"). 38. Second, if the agency reviewing the CJ Request determines that a license is required, a person must register with Defendants as an arms dealer under AECA 2778(b)(1)(A) and ITAR 122.1. 39. Third, if his or her registration is approved, the person must then apply for and obtain a license from Defendants. 40. Thereafter, the person must seek advance approval from Defendant STATE DEPARTMENT (in consultation with the other Defendant agencies), for each recipient of the speech pursuant to ITAR 123.9. This final requirement precludes any general publication or public discussion of the licensed material, since, under either, the publisher or speaker cannot know the names and identities of all potential recipients of the information. 41. Violation of the AECA or the ITAR is a criminal offense, punishable by, among others, a fine of up to $1,000,000, imprisonment of up to ten years, or both. 22 U.S.C. 2778(c) and ITAR 127.3. A civil penalty may also be imposed under ITAR 127.10. 42. ITAR 120.4(g) provides that an appeal of a CJ Request shall be determined within "30 days of receipt of the appeal." 43. Encryption systems, software and algorithms are included as "defense articles" on the Munitions List. ITAR 121.1(XIII)(b)(1), entitled "Auxiliary Military Equipment," includes "Cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components or software with the capability of maintaining secrecy or confidentiality of information and information systems." 44. Cryptography and speech about cryptography are also included as "defense services" because they "furnish assistance" with respect to defense articles and also because they qualify as "technical data" because they are "software directly related to" defense articles under ITAR 120.10(4). (1) Key ITAR Definitions 45. The ITAR 120.17 defines "export," in relevant part as follows: "Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad." Thus, publication in any form or any public discussion could result in "export" as defined in the ITAR, since each inherently presents a situation in which the speaker or publisher does not know all potential recipients of the information and a recipient might be a foreign person. 46. "Foreign person" is defined at ITAR 120.16 as anyone who is not a lawful permanent resident under 8 U.S.C. 1101(a)(20) or who is not a "protected individual" under 8 U.S.C. 1324b(a)(3). This section defines "protected individual" to include U.S. citizens and certain lawfully admitted aliens. 47. The ITAR 121.8(f) defines "software" as follows: "Software includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems and support software for design, implementation, test, operation, diagnosis and repair." (2) Public Domain Exception 48. The ITAR 125.1 does provide for an exclusion from the procedures for "information in the public domain." Plaintiff is informed and believes that Defendants have interpreted and applied the ITAR's 'public domain' exception such that cryptographic information can never be placed into the 'public domain'. 49. In addition, information related to cryptography is excluded from the public domain exception by ITAR XIII(k), since cryptographic information has been interpreted by defendants as included in the definition of a "defense service" on the grounds that it could give "assistance" to or furnish "technical data" to a foreign person with respect to a defense article under ITAR 120.9. In effect, any information which defendants determine gives "assistance" to a foreign person with respect to a defense article or which is information "directly related to defense articles" cannot be subject to the public domain exception. Thus, publication or public discussion of any such information is always prohibited under the ITAR. (3) Scienter 50. 22 U.S.C. 2778(c) provides for criminal penalties for those who "willfully" violate the statute or regulations. 51. No such requirement of "willfulness" is included in AECA or ITAR provisions which allow civil penalties. (4) Judicial Review 52. 22 U.S.C. 2778(h) precludes judicial review of executive designations of items as "defense articles and defense services" by stating: "The designation by the President (or by an official to whom the President's functions under subsection (a) of this section have been duly delegated), in regulations issued under this section, of items as defense articles or defense services for purposes of this section shall not be subject to judicial review." 53. ITAR 128.1 improperly purports to extend the preclusion of judicial review to any review under the Administrative Procedures Act, stating: "The administration of the Arms Export Control Act is a foreign affairs function and is thus encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act and is thereby expressly exempt from various provisions of that Act. Because the exercising of the foreign affairs function, including the decisions required to implement the Arms Export Control Act, is highly discretionary, it is excluded from review under the Administrative Procedure Act." (5) ITAR's Purported Policy For Designating And Determining Defense Articles And Services 54. ITAR 120.3 provides that "[A]n article or service may be designated or determined in the future to be a defense article or defense service if it (a) Is specifically designed, developed, configured, adapted, or modified for a military application, and (i) Does not have predominant civil applications, and (ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service used for civil applications; or (b) Is specifically designed, developed, configured, adapted, or modified for a military application, and has significant military or intelligence capability such that control under this subchapter is necessary." F. FACTS 55. Plaintiff is a graduate student in mathematics at the University of California at Berkeley. Entirely on his own, he has developed 1) an algorithm; 2) a mathematical paper called "The Snuffle Encryption System" which describes and explains this algorithm; and 3) a computer program called Snuffle 5.0 which implements the algorithm (hereinafter collectively referred to as the "Items"). He wishes to publish the Items in a variety of media. Filed herewith under seal as Exhibit "A1" are true and correct copies of the Items. 56. MR. BERNSTEIN's work in creating the Items was and is unconnected with any foreign enterprise or any project classified by the U.S. Government. 57. The purpose and function of the algorithm are to turn existing, separate, data authentication programs, known as hash functions, into programs which may be used to encrypt messages. Since the mathematical and computer programming techniques for allowing authentication of data are the same as those used to encrypt, the algorithm is quite simple. Data authentication programs are exempt from the ITAR regulations under 121.1(XIII)(b)(1)(vi). 58. The Items were and are not designed, developed, configured, adapted or modified for military applications. They have predominant civil applications such as protection of privacy and prevention of fraud and have performance equivalents to articles and services used for civil applications. 59. Plaintiff intends general publication of the Items, including but not limited to the following: a) the print medium, b) electronic international networks and c) electronic newsgroups. Plaintiff also wishes to discuss the Items at mathematical conferences and open public meetings of interested academics, business people and lay persons. 60. Plaintiff wishes to publish the Items and discuss their contents in order to disseminate his ideas and information about cryptography to other mathematicians and to business and lay persons interested in his ideas. Such activity is part of the normal process of academic and scientific exchange of ideas and information. (1) CJ 191-92 61. On or about June 30, 1992, Plaintiff submitted a CJ Request to Defendant STATE DEPARTMENT to determine whether publication of 1) the paper entitled "The Snuffle Encryption System," 2) source code for the encryption portion of Snuffle, and 3) source code for the decryption portion of Snuffle required a license under the ITAR. Filed under seal herewith as Exhibit "A" is a true and correct copy of the cover letter accompanying CJ 191-92. 62. Plaintiff is informed and believes and based upon such information and belief alleges that his request, labelled CJ 191-92 by the Defendant STATE DEPARTMENT, was referred to, among others, Defendants MARK KORO and GREG STARK acting under color of authority of Defendant NATIONAL SECURITY AGENCY for determination of whether a license was required prior to publication of the Items. 63. On or about August 20, 1992, Defendant WILLIAM G. ROBINSON, acting under color of authority of Defendant STATE DEPARTMENT, informed Plaintiff that he would need a license in order to publish the items included in CJ 191-92. Attached hereto as Exhibit "B" is a true and correct copy of Defendant ROBINSON's letter to Plaintiff. 64. After receiving Defendants response to CJ 191-92, Plaintiff tried repeatedly to discuss the matter with persons at Defendant STATE DEPARTMENT and Defendant NATIONAL SECURITY AGENCY and to clarify their interpretation and application of the ITAR both by telephone and letter. Defendants refused to respond to those attempts. 65. On or about September 22, 1993, Plaintiff appealed the decision of Defendant ROBINSON and Defendant STATE DEPARTMENT in CJ 191-92. Attached hereto as Exhibit "C" is a true and correct copy of Plaintiff's appeal. 66. As of the date of this Complaint, over one year later, Defendants have failed to respond to Plaintiff's appeal, despite the fact that ITAR 120.4(g) requires a determination of such appeals within 30 days. (2) Plaintiff Attempts to Separate the Scientific Paper From the Computer Program 67. On or about July 15, 1993, Plaintiff submitted five (5) separate CJ Requests to Defendant STATE DEPARTMENT reflecting his algorithm. These were 1) a scientific paper entitled "The Snuffle Encryption System"; 2) source code for the encryption component of Snuffle; 3) source code for the decryption component of Snuffle; 4) a description of how to encrypt using Snuffle; 5) instructions for programming a computer to use Snuffle. Filed herewith as Exhibit "D" are true and correct copies of the cover letters accompanying Plaintiff's five separate requests. Filed herewith under seal as Exhibit "D1" is a true and correct copy of the contents of Plaintiff's five separate requests. 68. Plaintiff's purpose in dividing the Items into separate requests was to give the Defendants the opportunity to separately consider the Items, especially the Scientific Paper, in order to determine if they could be published separately. 69. On or about October 5, 1993, Defendant WILLIAM G. ROBINSON, acting under color of authority of Defendants and each of them, consolidated Plaintiff's five requests into one called CJ 214-93, and informed Plaintiff that he would need a license to publish them. Attached hereto as Exhibit "E" is a true and correct copy of Defendant ROBINSON's letter to Plaintiff. 70. Because of the similar nature of CJ 214-93 to CJ 191-92, and the apparent futility of appeal, Plaintiff has not separately appealed CJ 214-93. G. RESULT OF DEFENDANTS' REJECTION OF PLAINTIFF'S CJ REQUEST 71. Plaintiff's scientific paper, algorithm and computer program are speech protected by the First Amendment to the United States Constitution. Thus, by rejecting Plaintiff's CJ Request, Defendants have determined that these items are "defense articles or defense services" which may not be exported without submitting to the above-described prior restraints. Since Defendants define "export" to include disclosing or transferring cryptology to a foreign person anywhere in the world, including within the United States, Plaintiff is informed and believes and therefore alleges that he is required by law to obtain a license to publish or publicly discuss any of the Items whether within or outside the United States. 72. Plaintiff is presently unable to publish his scientific paper, algorithm or computer program within or outside the United States. The only reason preventing publication is the threat of prosecution for an illegal export if he does so without a license. 73. To this date, Plaintiff has not received a response to his appeal or a license to publish his paper, algorithm, or computer program and as a result, he has not published the Items. H. CHILLING EFFECT ON PLAINTIFF 74. Plaintiff has written other scientific papers, algorithms and computer programs in the mathematical field of cryptology which he wishes to publish, and the only reason he has not published such papers is because of the Defendants' threatened application and enforcement of the statute and regulations at issue in this case. 75. As a direct or indirect consequence of Defendants' official representations that scientific papers such as Plaintiff's must be licensed prior to publication and the conduct of Defendants, Plaintiff has become apprehensive about publishing and exchanging information and ideas about cryptography. 76. As a result of Defendants' conduct, Plaintiff has refrained and will continue to refrain from publishing his scientific paper and other scientific papers, for fear of incurring civil and criminal liability. I. CHILLING EFFECT ON OTHERS 77. Plaintiff is informed and believes, and therefore alleges, that for the same reasons, other persons similarly situated have become apprehensive about publishing and exchanging information and ideas about cryptography. 78. The statutes, regulations, policies and conduct of Defendants cause a chilling effect on the exercise of First Amendment rights to speak, to publish, to engage in academic inquiry and study and to receive items from Plaintiff and other persons similarly situated, preventing important matters of concern to mathematicians, scientists, the commercial community, and the public from being openly discussed. 79. The same chilling effect on these First Amendment rights will result from Defendants' official representations that scientific papers such as Plaintiff's must be licensed prior to publication and from Defendants' official denials of an export license even though the threat of criminal and civil prosecution is never carried out or ultimately fails. Persons who wish to publish are deterred from publishing because they do not wish to endure the inconvenience of requesting a license to publish, and because they do not wish to risk civil or criminal liability. 80. Unless restrained from doing so, Defendants will continue to violate the First Amendment rights of Plaintiff and other persons similarly situated to publish Items on a variety of subjects, including cryptology. J. CRYPTOLOGY IS A CURRENT ISSUE OF PUBLIC DEBATE 81. Cryptology is a subject of great public policy debate today. During the past several years there have been many government initiatives relating to cryptology. Cryptology is a matter of both scientific and political interest to the public, and there is a public interest in the dissemination of information about cryptology, especially as commercial and private use of computer networks grows. 82. Several government initiatives about cryptology and the scope of the export restrictions as currently applied by Defendants are currently being debated in the public arena and in Congress. For instance, the debate over the so-called Clipper Chip or Key Escrow Encryption initiative includes many issues about cryptology. In addition, Congress has recently considered legislation which would eliminate many of the export restrictions on cryptologic items, such as the Plaintiff's scientific paper, algorithm and computer program at issue in this case. 83. As noted above, Plaintiff's scientific paper, algorithm and computer program adapt existing exportable authentication technology in order to allow encryption. They were designed to point out the futility of attempting to decontrol authentication while continuing to control cryptography, by showing how the techniques for doing both are largely the same so that authentication algorithms and computer programs can be easily transformed to perform encryption tasks. As such, the Items are political speech in that they point out weaknesses and senselessness in the laws and regulations. 84. Plaintiff's scientific paper, algorithm and computer program, and the other similar items he plans or wishes to publish, are, therefore, political speech entitled to the highest degree of protection under the First Amendment to the Constitution of the United States. GENERAL ALLEGATIONS 85. As to each of the following counts, Plaintiff alleges the need for injunctive and declaratory relief, damages and the need for a Temporary Restraining Order, a Preliminary Injunction and a Permanent Injunction, as follows: 86. An actual controversy has arisen and now exists between Plaintiff and Defendants concerning the constitutional validity of the Arms Export Control Act and the regulations which have been promulgated thereunder, as well as the application of the statute and regulations by Defendants. 87. A judicial declaration is necessary and appropriate at this time under the circumstances in order that Plaintiff may ascertain and enforce his rights and duties and also to prevent injustice and irreparable injury to Plaintiff. 88. Plaintiff has already suffered damages from Defendants' conduct in that he has been unable to advance his professional reputation and career by publishing and discussing his work with his professional peers and others. Irreparable injury to Plaintiff's reputation and livelihood is threatened by the conduct of Defendants and the continuation of this unconstitutional regulation. 89. Every day that the statutes, regulations, policies and conduct of Defendants remain unrestrained, irreparable injury is being done because Plaintiff and other persons are deterred by fear of possible conviction from fully and vigorously pursuing their rights, and although Plaintiff would like to publish the Items, he is deterred by fear of criminal and civil prosecution from so publishing. 90. Plaintiff has no adequate remedy at law for the injuries currently being suffered and which are threatened, in that a mere award of monetary damages many months from now will not recover his professional reputation and career, and it will be impossible for Plaintiff to determine the precise amount of damage that he will suffer if Defendants' conduct is not restrained. 91. Injunctive and declaratory relief are the only forms of relief which can adequately redress these harms and protect the aforesaid rights of Plaintiff and other persons. The harm already suffered by Plaintiff in being unable to publish his paper, algorithm or computer program and the deterrence to and the prevention of the free exercise of these rights cannot be removed by successful defense to criminal prosecutions. 92. No injury will be sustained by the public or Defendants by the issuance of a temporary restraining order, preliminary injunction, or permanent injunction. COUNT I (UNCONSTITUTIONAL PRIOR RESTRAINT) 93. Plaintiff realleges and incorporates herein by this reference all of the Allegations contained in all of the previous paragraphs herein as though the same were fully set forth in COUNT I. 94. The statutes and regulations, which operate as an administrative licensing scheme applied to the publication of scientific papers, algorithms or computer programs, constitute an impermissible prior restraint on speech, in violation of the First Amendment to the Constitution of the United States in the following particulars: 95. The statutes and regulations, as interpreted by Defendants, require that a person who wishes to publish a paper, algorithm or computer program related to cryptology, in any way, must first apply to the Department of State, through its Commodity Jurisdiction procedure, to determine whether a license is needed. 96. Second, the statutes and regulations, as interpreted by Defendants, require a person who wishes to publish a scientific paper, algorithm or computer program which may be deemed an item on the United States Munitions List to register with the DEPARTMENT OF STATE. 97. Third, the statutes and regulations, as interpreted by Defendants, require that if the scientific paper, algorithm or computer program is in fact a "defense article or defense service", a person must also obtain a license from Defendants. 98. Finally, the statutes and regulations, as interpreted by Defendants, require a person to identify and seek approval from Defendants for each foreign person recipient of the scientific paper, algorithm or computer program. 99. As a direct result of the aforesaid acts and omissions of Defendants, their agents and employees, acting in their official capacities, under color of federal law, Plaintiff, and all other persons wishing to publish scientific papers in the mathematical field of cryptology, have been subjected to unlawful prior restraints depriving them of their federal constitutional rights to speak, to publish, to assemble, to receive information, and to engage in academic study, inquiry and publication, guaranteed by the First Amendment to the Constitution of the United States. 100. No adequate governmental justification exists for these prior restraints. The statutes and regulations impose requirements and subsequent civil and criminal penalties grossly disproportionate to any legitimate or compelling governmental purpose and are not justified by a proper governmental objective. They are justified by neither a rational or a compelling governmental interest, are not narrowly drawn to express any such interest, and there is no grave, imminent or highly probable harm to any such interest sufficient to justify the imposition of this prior restraint. 101. The actions of Defendants, in whole and individually, in denying Plaintiff his right to publish his scientific paper, algorithm or computer program constitute a prior restraint of Plaintiff's First Amendment right to speak, to publish, to associate and to engage in academic inquiry and study. 102. As a result of the foregoing acts of Defendants', Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. COUNT II (CJ REQUEST PROCESS IS UNCONSTITUTIONAL) 103. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the previous paragraphs herein as though the same were fully set forth in COUNT II. 104. The statute and the regulations do not assure a prompt final judicial decision reviewing any interim and possibly erroneous determination that a license is required under the CJ Request procedure. 105. Plaintiff submitted a Commodity Jurisdiction request to Defendants in order to determine whether a license would be required in order to publish the Items. This procedure is the official means by which Defendants determine that items are controlled by the ITAR. Two months elapsed. Plaintiff was unable to publish his paper during the time his CJ Request was pending, because if he published his paper, and Defendants then determined that its publication was unlawful, he would have been subject to criminal and civil liability. As a result of this delay, Plaintiff suffered harm. 106. By regulation, Defendants are required to "provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction. If after 45 days the Office of Defense Trade Controls has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Center of Defense Trade that this determination be given expedited processing." ITAR 120.4(e). By not setting or observing a reasonable deadline for final determination of whether Plaintiff's Items were controlled, Defendants have acted without observance of procedure of law. 107. In addition, the CJ process does not contain clear administrative standards or place the burden on the government to initiate judicial review within any specified period of time. The CJ Request process forces Plaintiff, and other persons similarly situated, to delay publication while Defendants decide whether items intended for publication are "defense articles or defense services." 108. Furthermore, ITAR 128.1 precludes judicial review of Defendants' determination of whether the prior restraints apply to a paper intended for publication. As such, the CJ process, both on its face and as applied, constitutes an unconstitutional prior restraint of Plaintiff's First Amendment right to free speech since it precludes judicial review entirely. 109. The statutes and regulations fail to provide any procedural safeguards sufficient to allow a prior restraint of Plaintiff's First Amendment right to speak, to publish, to associate and to engage in academic inquiry and study. 110. The statutes and regulations do not contain narrowly drawn, reasonable and definite standards for the administering officials to follow, and give them unbridled discretion to determine what articles and services are subject to licensing, and whether licensing should be required. 111. The regulations do provide that the Defendants must act on appeals within 30 days. This regulation has not been applied, however, in practice. Here, for example, it has been nearly one and one-half years since Plaintiff appealed CJ 191-92 and Defendants still have not acted. 112. The statutes and regulations do not provide that the Defendants must either issue a license within a specified brief period of time or to go to court to restrain publication, and such undue delay results in unconstitutional suppression of speech. 113. Under AECA, 22 U.S.C. 2778(h), Defendants' determination that the Items are controlled under ITAR as items "on the Munitions List" cannot be reviewed by a court. Thus, not only have Defendants not sought judicial review of their decision that the Items are controlled and cannot be exported without a license, and not only do the statute and regulations lack any requirement that they seek judicial review of such determination, Plaintiff is statutorily precluded from challenging the decisions that the Items are controlled. As a result, this scheme is analogous to one where a licensing board decides that a book or movie is obscene, and a court cannot review whether the book or movie is obscene under the Constitution. 114. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafter set forth. COUNT III (REGISTRATION PROCESS IS UNCONSTITUTIONAL) 115. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the previous paragraphs herein as though the same were fully set forth in COUNT III. 116. Once the CJ process is completed, Defendants also require the Plaintiff to register as an arms dealer. 117. Defendants have contended that judicial actions in interpreting and applying the procedures for registration as an arms dealer are precluded by ITAR 128.1. As such, the registration procedures, both on their face and as applied, constitute an unconstitutional prior restraint of Plaintiff's First Amendment right to free speech since they purport to prohibit judicial review on any grounds. 118. Further, the statutes and regulations fail to provide any procedural safeguards for registration as an arms dealer sufficient to justify a prior restraint of Plaintiff's First Amendment right to speak, to publish, to associate and to engage in academic inquiry and study. 119. The statutes and regulations do not contain narrowly drawn, reasonable and definite standards for the administering officials to follow, and give them unbridled discretion to determine whether an applicant is allowed to register as an arms dealer. 120. The statutes and regulations do not provide that the Defendants must act within a specified brief period of time. 121. The statutes and regulations do not provide that the Defendants must either accept registration of an applicant as an arms dealer within a specified brief period of time or to go to court to restrain publication, and such undue delay results in unconstitutional suppression of speech. 122. The statute and the regulations do not assure a prompt final judicial decision reviewing any interim and possibly erroneous denial of registration as an arms dealer and Plaintiff is informed and believes and upon such information and belief alleges that the process is entirely administrative and not judicial and that the administrative review decisions often take months. 123. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafter set forth. COUNT IV (LICENSE PROCEDURES ARE UNCONSTITUTIONAL) 124. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the previous paragraphs herein as though the same were fully set forth in COUNT IV. 125. Once a person has completed the CJ process and registered as an arms dealer, he or she must seek a license and advance approval for each recipient of the controlled Item or service. 126. Furthermore, Defendants have contended that judicial action in interpreting and applying the license procedures are precluded by ITAR 128.1. As such, the registration and license procedures, both on their face and as applied, constitute an unconstitutional prior restraint of Plaintiff's First Amendment right to free speech since they purport to prohibit judicial review on any grounds. 127. Further, the statutes and regulations fail to provide any procedural safeguards sufficient to allow a prior restraint of Plaintiff's First Amendment right to speak, to publish, to associate and to engage in academic inquiry and study. 128. The statutes and regulations do not contain narrowly drawn, reasonable and definite standards for the administering officials to follow, and give them unbridled discretion to determine what papers are subject to licensing, and whether licensing should be required. 129. The statutes and regulations do not provide that the Defendants must act within a specified brief period of time. 130. The statutes and regulations do not provide that the Defendants must either issue a license within a specified brief period of time or to go to court to restrain publication, and such undue delay results in unconstitutional suppression of speech. 131. Plaintiff submitted his paper to Defendants and to this date Defendants have neither declared that he needs no license to publish, nor granted him a license to publish, nor sought judicial review of the decision that he may not publish without a license. 132. The statute and the regulations do not ensure a prompt final judicial decision reviewing any interim and possibly erroneous denial of a license and Plaintiff is informed and believes and upon such information and belief alleges that the process is entirely administrative and not judicial and that the administrative review of decisions often take months. 133. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. COUNT V (THE AECA AND ITAR ARE VAGUE) 134. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the preceding paragraphs herein as though the same were fully set forth in COUNT V. 135. The ITAR and AECA are vague in that they fail to give adequate notice to people of ordinary intelligence concerning the conduct they proscribe. Accordingly, they fail to provide a fair warning to the innocent, they are susceptible to arbitrary and discriminatory enforcement and they operate to inhibit the exercise of First Amendment freedoms by creating a chilling effect on constitutionally protected speech. Specifically, the ITAR and AECA are vague in the following particulars, among others: 136. The ITAR are vague in that they define "Category XIII-Auxiliary Military Equipment" to include any "software with the capability of maintaining secrecy or confidentiality of information or information systems." As technical proficiency and computer processing power continue to grow, this standard also constantly changes. What was capable of maintaining secrecy ten years ago is certainly not capable of doing the same now. Thus, a reasonable person, whether creating or using scientific papers, algorithms or computer programs, cannot know at any point in time whether Defendants consider the material "capable of maintaining secrecy." 137. ITAR 120.10(5) is vague in that the definition of "technical data" exempts "information concerning general scientific mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in section 120.11." Since reasonable minds can differ widely on the definition of what are "principles commonly taught," and since such teaching can vary widely from institution to institution as well as from year to year, the definition of what must be subject to the prior restraints described above is in a constant state of uncertainty and flux. 138. ITAR is vague in that 120.10 purports to exempt from the definition of technical data the information described above, yet Defendants have applied this regulation in such a way as to require licensing for virtually all scientific papers, algorithms and computer programs related to cryptology, despite the fact that they are also "information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities." 139. The ITAR 120.10(1) is vague in that the definition of "technical data" does not include "software", something that a person of ordinary intelligence would assume under the plain meaning of that term. 140. The ITAR are vague in that they purport to differentiate between "encryption" items and "authentication" items, a distinction which has no mathematical or computer programming basis. The techniques which allow authentication are the same as those which, when rudimentarily adapted such as Plaintiff has done here, allow encryption. Thus, a reasonable person cannot know whether what he or she developed for one purpose will be used or will be considered by Defendants to be used for another cryptologic purpose. 141. ITAR 120.11 is vague as to time in that it states: "[P]ublic domain means information which is published and which is generally accessible or available to the public." A reasonable person cannot know what it means to say that something "is published" or how to place something into the public domain. In fact, Plaintiff is informed and believes that Defendants have interpreted this to mean that no information which is not already in the public domain can be placed in the public domain. 142. The ITAR are vague in that Regulation 121.8(f) defines software as follows: "Software includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems and support software for design, implementation, test, operation, diagnosis and repair." Defendants have possibly interpreted this to include scientific papers such as Plaintiff's. Thus, the definition of "software," as applied by Defendants, is vague in that a reasonable person cannot know if his speech, regardless of its form, is included in Defendants definition of "software." 143. The AECA 2778(c) is vague in that it requires "willful" violations of the statutes and regulations for criminal penalties but since a person of reasonable intelligence cannot determine what the statute and regulations cover, the question of whether a violation was "willful" is also vague. 144. The AECA 2778(e) and ITAR are vague in that civil penalties apparently can be imposed absent willful conduct, but a person of reasonable intelligence cannot determine whether an item is on the Munitions List and therefore controlled or whether an action constitutes an "export" within the meaning of the ITAR and AECA. 145. As a direct result of, among others, the aforesaid acts and omissions of Defendants, their agents and employees, acting in their official capacities, under color of federal law, Plaintiff, and all other persons wishing to publish scientific papers in the mathematical field of cryptology, have been subjected to vague regulations which deprive them of their federal constitutional rights to speech, to publish, to assemble, to receive information, and to engage in academic study, inquiry and publication, guaranteed by the First Amendment to the Constitution of the United States. 146. No adequate governmental justification exists for this prior restraint. The statutes and regulations impose vague requirements and subsequent civil and criminal penalties grossly disproportionate to any legitimate or compelling governmental purpose and are not justified by an proper governmental objective. They are justified by neither a rational or a compelling governmental interest, are not narrowly drawn to express any such interest, and there is no grave, imminent or highly probable harm to any such interest sufficient to justify such vague regulations. 147. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction, and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. COUNT VI (THE AECA AND ITAR ARE OVERBROAD) 148. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the previous paragraphs herein as though the same were fully set forth in COUNT VI. 149. The AECA and ITAR are overbroad, both on their face and as applied by Defendants in that they are not carefully drawn or authoritatively construed to punish only unprotected speech and are susceptible of application to protected expression in the following particulars, among others: 150. The ITAR are overbroad in that ITAR 120.3(a) and (b) state that the Policy on Designating and Determining Defense Articles and Services is to include only those which are "specifically designed, developed, configured, adapted, or modified for a military application" yet it has been applied to prohibit export of Plaintiff's Items. 151. The ITAR are overbroad in that ITAR 120.3(a)(i) and (ii) state that items cannot be designated unless they do not have predominant civil applications and do not have performance equivalent to those of an article or service used for civil applications, yet it has been applied to prohibit export of Plaintiff's Items. 152. The ITAR 120.17 is unconstitutionally overbroad on its face and/or as applied in that the definition of "export" contained therein includes "Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad." This definition encompasses within its coverage activities which are clearly protected by the guarantees of the First Amendment to the Constitution of the United States since it prevents Plaintiff from publishing a scientific paper, algorithm or computer program in any media whatsoever, whether domestically or abroad, on the grounds that it might have the effect of disclosing the information contained therein to a foreign person. 153. The definition of "export" is also overbroad in that it prevents Plaintiff from discussing or revealing his ideas in any public forum in the United States on the grounds that it might have the effect of disclosing the information contained therein to a foreign person. In fact, Plaintiff is informed and believes and upon such information and belief alleges that Defendants have prevented persons from discussing or revealing cryptologic ideas in public and scientific forums. 154. The ITAR are overbroad in that they require a person to determine whether each potential recipient is not a "foreign person" prior to sharing his ideas with them. 155. The ITAR are overbroad in that they have included and applied "information" and "technical data" in a manner which exceeds the reasonable or intended scope of the AECA, which was created to control munitions. 156. The ITAR are overbroad in that the exclusion from its licensing scheme of information in the public domain includes only information "which is published and which is generally accessible or available to the public" which phrase has been applied by Defendants to exclude any information not already published at the time of promulgation of the ITAR regulations. Thus, it creates a "Catch-22" situation, in which Defendant CHARLES RAY under color of authority, has informed Plaintiff in essence that his Scientific Paper could never be placed in the public domain since it is not already in the public domain. 157. The ITAR are overbroad as applied by Defendants in that they have excluded all speech about cryptology from the definition of information which could be in the "public domain." 158. The ITAR are overbroad in that ITAR 121.1 defines "Category XIII-Auxiliary Military Equipment" to include any "software with the capability of maintaining secrecy or confidentiality of information or information systems," thus including a large amount of software and speech having absolutely no military purpose or applications. 159. The ITAR are overbroad in that ITAR 121.8(f) defines software as follows: "Software includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems and support software for design, implementation, test, operation, diagnosis and repair." This definition on its face and as applied by Defendants encompasses within its coverage activities which are clearly protected by the First Amendment to the Constitution since it prevents Plaintiff and others from publishing on the subject of cryptology on the grounds that they might reveal "algorithms, system functional design or logic flows" as interpreted by Defendants. 160. The Defendants have applied the ITAR in an overbroad manner in that they have instructed Plaintiff that he must secure a license before publishing his scientific paper, algorithm or computer program despite clear evidence that he is a hobbyist and graduate student and so not a "person who engages in the United States in the business of either manufacturing or exporting defense articles," pursuant to regulation 122.1(a). Thus, as applied to Plaintiff, all persons must receive a license prior to export. 161. Plaintiff is informed and believes and upon such information and belief alleges the ITAR is overbroad as applied by Defendants in that Defendants have included software with no cryptography at all as requiring a license on the grounds that it contains a documented interface which could be used to insert a cryptographic software by someone at a later date. This has been described as "crypto with a hole". Thus, even a person who publishes entirely non-cryptographic software cannot know if Defendants deem that his software (or algorithms or scientific papers relating to the software) are subject to the statutes and regulations. 162. As a direct result of the aforesaid acts and omissions of Defendants, their agents and employees, acting in their official capacities, under color of federal law, Plaintiff, and all other persons wishing to publish in the mathematical field of cryptology, have been subjected to overbroad regulations which deprive them of their federal constitutional rights to speak, to publish, to assemble, to receive information, and to engage in academic study, inquiry and publication, guaranteed by the First Amendment to the Constitution of the United States. 163. No adequate governmental justification exists for these overbroad prior restraints. The statutes and regulations impose overbroad requirements and subsequent civil and criminal penalties grossly disproportionate to any legitimate or compelling governmental purpose and are not justified by a proper governmental objective. They are justified by neither a rational or a compelling governmental interest, are not narrowly drawn to express any such interest, and there is no grave, imminent or highly probable harm to any such interest sufficient to justify such overbroad regulations. 164. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. COUNT VII (CONTENT RESTRICTION/SUBSEQUENT PUNISHMENT) 165. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the previous paragraphs herein as though the same were fully set forth in COUNT VII. 166. Plaintiff seeks to publish a mathematical paper in the field of cryptology. He is a graduate student in mathematics at UC-Berkeley and publication of mathematical papers such as this one is likely to advance his career. Plaintiff has published other mathematical papers. 167. Plaintiff has been informed by Defendants that he may not publish his paper about cryptology without an export license. Defendants define an "export" to include disclosing or transferring cryptology or speech directly related to cryptography to a foreign person anywhere in the world, including within the United States. Thus, general publication or public discussion of cryptology within the United States constitutes "export" as defined by Defendants and a license is required. If publication is made or public discussion occurs without a license Plaintiff will be subject to civil and criminal liability. 168. Defendants' requirement of a license prior to publishing or publicly discussing the Items is an attempt to regulate speech on the basis of its content, since speech about cryptology is specifically targeted. 169. The statutes, regulations and policies of Defendants which make it illegal for Plaintiff to publish or publicly discuss the Items without an export license are unconstitutional, both on their face and as applied to Plaintiff, in that they deprive Plaintiff of his First Amendment rights of academic freedom and of freedom of speech, including his right to receive information from persons who cannot publish information because it is subject to export controls or who do not publish information because they fear it may be subject to export controls. 170. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. COUNT VIII (RIGHT TO RECEIVE/FREEDOM OF ASSOCIATION) 171. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the preceding paragraphs herein as though the same were fully set forth in COUNT VIII. 172. Because Defendants have denied Plaintiff a license to publish or publicly discuss the Items, Plaintiff is unable to engage in open exchange of information, including software and ideas, in the mathematical and scientific community of which he is a part. 173. Defendants' denial of a license to publish or publicly discuss the Items impermissibly infringes on Plaintiff's First Amendment right of academic freedom, which includes the right to engage in study and inquiry and to publish and discuss the results of such study and inquiry. 174. Plaintiff is informed and believes, and therefore alleges, that there are persons whom he does not personally know who wish to read and discuss Plaintiff's paper, algorithm or computer program. Such persons include U.S. citizens, mathematicians and others both in and outside the United States. 175. Plaintiff is informed and believes, and alleges, that there are persons whom he does not personally know and who are foreign persons but reside in the United States, who wish to read and discuss Plaintiff's paper, algorithm or computer program. Defendants' denial of a license to publish Plaintiff's paper, algorithm or computer program is an attempt to regulate Plaintiff's speech on the basis of citizenship and nationality of the recipients, and to regulate the information received by persons based on their citizenship and nationality. 176. The statutes, regulations and policies of Defendants which make it illegal for Plaintiff to publish or publicly discuss his paper, algorithm or computer program without an export license are unconstitutional, both on their face and as applied, in that they deprive Plaintiff of his freedom of association and also deprive these other persons wishing to hear Plaintiff's speech, especially non-foreign persons, of freedom of association as well as their First Amendment right to receive information on scientific and political issues. They also violate the right to equal protection under the First and Fifth Amendment of these other persons, by restricting the speech they may hear on the basis of their citizenship and nationality. 177. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. COUNT IX (FIRST AMENDMENT EQUAL PROTECTION/VIEWPOINT-DISCRIMINATION) 178. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the previous paragraphs herein as though the same were fully set forth in COUNT IX. 179. ITAR 121.8(f) states that those who intend "to export software only should, unless it is specifically enumerated in 121.1 (e.g., XIII(b)), apply for a technical data license pursuant to 125 of this chapter." Category XIII(b) refers to cryptology. Thus, the ITAR treats cryptographic software differently from other software, since it is not treated as "technical data." 180. In addition, the "public domain" exemption at 120.11 applies only to "information." Plaintiff is informed and believes that Defendants have interpreted "information" to exclude cryptographic information, relying on 120.11(1), which states that "information, other than software as defined in 120.10(d)" is included as technical data. Thus, under Defendants' definitions, cryptographic information can never be included in the public domain even though all other kinds of information can be in the public domain and can be exported without a license. 181. Plaintiff is informed and believes, and therefore alleges, that the statutes, regulations, policies and conduct of Defendants are unduly arbitrary and capricious, and impermissibly infringe on Plaintiff's right to equal protection of the laws in violation of the First and Fifth Amendments to the Constitution, in that speech about a particular subject, cryptology, is stringently controlled and is not given the same treatment as other types of expression. 182. Plaintiff is informed and believes, and therefore alleges, that the statutes, regulations, policies and conduct of Defendants, which place special restrictions on speech about cryptology, serve the unlawful purpose of depriving him and other persons of their freedoms of speech, press, association, inquiry and study with regard to the particular mathematical subject of cryptology, because the Defendants have their own viewpoint about the political and social value of cryptology which they seek to further by restricting others' speech about cryptology, and that any legal action under these statutes, regulations and policies would be carried on without any hope of ultimate success but with the basic purpose and effect of intimidating and harassing them from disseminating and exchanging information about cryptology. Such a censorial purpose, which discriminates in favor of government viewpoints about a subject of political and social interest, impermissibly infringes on the First Amendment rights of Plaintiff and other persons who wish to speak freely and exchange ideas and information about cryptology. 183. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. COUNT X (ADMINISTRATIVE PROCEDURES ACT) 184. Plaintiff realleges and incorporates herein by this reference all of the allegations contained in all of the previous paragraphs herein as though the same were fully set forth in COUNT X. 185. Plaintiff seeks to publish a scientific paper containing an algorithm and a computer program in the mathematical field of cryptology. The actions of Defendants, including their inaction in granting him a license to publish, constitute unlawful agency action and Plaintiff is adversely affected and aggrieved by these actions. 186. Agency action in deciding Plaintiff's appeal has been unlawfully withheld or unreasonably delayed under 5 U.S.C. 706(l) in that he appealed Defendant's decision on September 22, 1993 and to date, no response has been received, despite the fact that ITAR 120.4(g) requires determination of an appeal within 30 days. 187. By statute, Defendants only have the authority to regulate the export of arms. Plaintiff's desired publication is not an export of arms, because publication is not an "export", and the Items are not "arms." Defendants' actions in promulgating vague and overbroad regulations which have been and are being applied to Plaintiff, and which can be applied to anyone wishing to publish a scientific paper, constitute agency action, both as applied and on its face, in excess of statutory jurisdiction, authority, or limitations. 188. By regulation, Defendants are required to "provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction. If after 45 days the Office of Defense Trade Controls has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Center of Defense Trade that this determination be given expedited processing." ITAR 120.4(e). By not setting or observing a reasonable time period for determination of whether Plaintiff's Items were controlled, Defendants have acted without observance of procedure of law. 189. The foregoing actions of Defendants, are arbitrary, capricious, constitute an abuse of discretion and are otherwise not in accordance with law under 5 U.S.C. 706(2)(A) and so should be held unlawful and set aside. 190. The foregoing actions of Defendants are contrary to Plaintiff's constitutional rights under 5 U.S.C. 706(2)(B) and so should be held unlawful and set aside. 191. Furthermore, under the Constitution, both the First Amendment and the Fifth Amendment require that Defendants make a determination as to Plaintiff's desired publication within a brief and specified period of time or initiate judicial review to restrain publication. By preventing Plaintiff from publishing his paper, Defendants' actions, findings and conclusions are contrary to constitutional right, power, privilege or immunity. 192. The foregoing actions of Defendants are in excess of their statutory jurisdiction, authority or limitations, in, among others: a) the Defendants have applied these provisions to the Items despite the fact that they were not specifically designed, developed, configured, adapted or modified for a military operation and do have predominant civil applications and have performance equivalents used for civil applications as required in ITAR 120.3. b) the Defendants have applied these provisions to Plaintiff despite the fact that he is a hobbyist and academic mathematician and so does not "engage in the business" of manufacturing, exporting or importing "defense articles or defense services" as required by AECA 2778(b)(1)(A) c) the Defendants have promulgated ITAR 128.1 and represented to Plaintiff and others that the administration of the AECA "is excluded from review under the APA" despite the fact that the AECA 2778(h) excludes "only the designating... in the regulations of items as defense articles or defense services from judicial review," and does not preclude all review. d) Plaintiff is informed and believes and based upon such information and belief alleges that Defendant STATE DEPARTMENT has unlawfully delegated authority to make final decisions as to cryptographic items, papers, and other information to Defendant National Security Agency, that there is no basis in law for such delegation, and that Defendants' actions are in excess of statutory jurisdiction, authority, or limitations. e) the Defendants have defined the term "export" in the ITAR regulations in a manner which far exceeds any reasonable or intended use of the term as used in the AECA. f) the Defendants have included and applied the terms "information" and "technical data" in the ITAR in a manner which exceeds the reasonable or intended scope of the AECA, which was created to control munitions. 193. Plaintiff is informed and believes and based upon such information and belief alleges that Defendant STATE DEPARTMENT has failed to coordinate with the Arms Control & Disarmament Agency in making decisions on issuing export licenses as required under 22 U.S.C. 2778(2). 194. All of the foregoing acts of Defendants were done without observance of procedure required by law in that by regulations, "State, Defense and Commerce will resolve commodity jurisdiction disputes in accordance with established procedures." ITAR 120.4(f). Plaintiff is informed and believes, and therefore alleges, that such procedures are not published. Plaintiff further alleges that such procedures for obtaining a decision under ITAR 120.4 are required to be published in the Federal Register as required by 5 U.S.C. 552(a)(1) or made available to the public as required by 5 U.S.C. 552(a)(2). By not publishing these procedures, Defendants have acted without observance of procedure by law, and no person, including Plaintiff, may be adversely affected by these unpublished procedures. 195. Plaintiff is informed and believes and based upon such information and belief alleges that Defendants' actions and inactions in not permitting him to publish his paper are unwarranted by the facts and should be set aside. 196. The actions and inaction of Defendant constitute final agency actions for which there is no other adequate remedy. Plaintiff is adversely affected or aggrieved by such actions and inaction because, under Defendants' interpretation of the law, he must have license to publish his paper and Defendants have not granted him such a license. Although Plaintiff has the right to appeal Defendants' denial of a license to publish his paper, that denial is effective because he cannot publish until he has a license, and the agency action is therefore presently operative. 5 U.S.C. 704. 197. As a result of the foregoing acts of Defendants, Plaintiff is entitled to declaratory relief, injunctive relief, damages, a temporary restraining order, a preliminary injunction and a permanent injunction as detailed in the General Allegations above. WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as set forth below: 1. For a Declaration of this Court: a. declaring that the statutes, regulations, policies, practices and conduct complained of herein are in violation of the First and Fifth Amendments to the Constitution of the United States and the Administrative Procedures Act on their face and so are null and void; b. declaring that the statutes, regulations, policies, practices and conduct complained of herein are in violation of the First and Fifth Amendments to the Constitution of the United States and the Administrative Procedures Act and so are null and void as applied to Plaintiff's desired conduct of publishing the Items and any other scientific paper, algorithm or computer program; 2. For a Temporary Restraining Order, a Preliminary Injunction, and a Permanent Injunction, all enjoining Defendants, and each of them, as well as those persons or entities acting on their behalf, and all persons acting in concert or participating with them, from prosecuting or penalizing Plaintiff for publishing his scientific paper, algorithm or computer program, and specifically, a. preliminarily and permanently enjoining Defendants from doing or causing to be done any of the following acts: 1) further and future enforcement, operation or execution of the statutes, regulations, policies, practices and conduct complained of herein, with respect to scientific papers, algorithms or computer programs through criminal prosecution, civil penalties or in any other way; 2) threatening, detaining, prosecuting, penalizing, discouraging, or otherwise interfering with Plaintiff and any other person in the exercise of their federal constitutional rights. b. granting expedited docket treatment to bring this case to trial at the earliest possible time. 3. For the recovery of damages in a sum to be proved at trial; 4. For attorneys fees incurred herein; 5. For costs of suit incurred herein; and 6. For such other and further relief as the Court deems just and proper. Dated: _______________ McGLASHAN & SARRAIL Professional Corporation By______________________________ CINDY A. COHN Attorneys for Plaintiff DANIEL J. BERNSTEIN