[Scanned/typed version of government brief.] FRANK W. HUNGER Assistant Attorney General MICHAEL J. YAMAGUCHI United States Attorney MARY BETH UITTI Assistant United States Attorney 450 Golden Gate Avenue San Francisco, CA 94102 Telephone: (415) 556-6430 VINCENT M. GARVEY ANTHONY J. COPPOLINO Department of Justice Civil Division, Room 1020 901 E Street, N.W. Washington, D.C. 20530 Telephone: (202) 514-4782 Fax: (202) 616-8470 or 616-8460 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN, ) ) Case No. C 95-0582 MHP Plaintiff, ) ) MEMORANDUM OF POINTS vs. ) AND AUTHORITIES IN ) SUPPORT OF DEFENDANTS' UNITED STATES DEPARTMENT OF ) MOTION TO DISMISS STATE, et al., ) ) Hearing: October 20, 1995 Defendants ) Time: 10:30 a.m. ______________________________) TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATUTORY AND REGULATORY BACKGROUND. . . . . . . . . . . . . . . . . . . .2 FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 I. A CHALLENGE TO THE DESIGNATION OF A COMMODITY AS INCLUDED ON THE UNITED STATES MUNITIONS LIST IS NOT JUSTICIABLE . . . . . . . . . . . . . . . . . . . . . . . . . .5 II. PLAINTIFF HAS NOT RAISED ANY COLORABLE CONSTITUTIONAL CLAIM SUBJECT TO JUDICIAL REVIEW . . . . . . . . . . . . . . . . . . 10 A. The Determination that Plaintiff's Cryptographic Software is Covered by the USML Does Not Constitute the Regulation of Speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. Under O'Brien v. United States, the Regulation of Cryptographic Software on the USML Furthers Legitimate Governmental Interests that are Unrelated to the Suppression of Expression . . . . . . . . . . . 13 C. The Commodity Jurisdiction Determinations Do Not Constitute a "Prior Restraint" on Speech . . . . . . . . . . 19 D. The ITAR is not Unconstitutionally Overbroad . . . . . . . . . . 22 E. Plaintiff Does Not State a Colorable Claim that the ITAR is Impermissibly Vague . . . . . . . . . . . . . . 25 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 - i - TABLE OF AUTHORITIES Cases Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . . . 6 Broadrick v. Oklahoma, 413 U.S. 601 (1973) . . . . . . . . . . 20-22 Chicago & Southern Air Lines v. Waterman SS. Corp., 333 U.S. 103 (1948) . . . . . . . . . . . . . . . . . 6 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-16 Coleman v. Miller, 307 U.S. 433 (1939) . . . . . . . . . . . . . . 6 Doe v. Schachter, 804 F.2d 53 (N.D. Cal. 1992) . . . . . . . . . . 9 Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990) . . . . . . . . . 9 Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) . . . . . . . . . . . . . . 16,23 O'Brien v. United States, 391 U.S. 367 (1968). . . . . . . . .passim Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . .22 Posters 'N' Things, Ltd. v. United States, 114 S.ct. 1747 (1994). . . . . . . . . . . . . . . . . . . . . .24 Screws v. United States, 325 U.S. 91 (1945). . . . . . . . . . . .24 Spence v. Washington, 418 U.S. 405 (1974). . . . . . . . . . . . .11 Texas v. Johnson, 491 U.S. 397 (1989). . . . . . . . . . . . . . .11 Turner Broadcasting Sys. Inc. v. FCC, 114 S.Ct. 2445 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . .13 United States v. Albertini, 472 U.S. 675 (1985). . . . . . . . . .15 United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992), cert. denied 113 S.Ct. 1273 (1993) . . . . . . . . . . . . . . 7-9 United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . .passim -ii- United States v. Helmy, 712 F.Supp. 1423 (E.D. Cal. 1989). . . . . 6 United States v. Lizarraga-Lizarraga, 541 F.2d 826 (9th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . .24 United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990) . . . . . 7-8 United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) . . . . . . . . . . . .24 United States v. Martinez, 904 F.2d 601 (11th Cir. 1990) . . . . 6,8 United States v. Moller-Butcher, 560 F.Supp. 550 (D. Mass. 1983). . . . . . . . . . . . . . . . . . . . . . . . . 8 United States v. Spawr Optical Research, Inc., 864 F.2d 1467 (9th Cir. 1988), cert. denied, 493 U.S. 809 (1989). . . . . . . . . . . . . . . . . . . . . . . 7 United States v. Stansell, 847 F.2d 609 (9th Cir. 1988). . . . 20,21 United States v. Top Sky, 547 F.2d 486 (9th Cir. 1976) . . . . . .21 Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . . . . . . .15 Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993) . . . . . . . . . . .11 Webster v. Doe, 486 U.S. 592 (1988). . . . . . . . . . . . . . . 8,9 Young v. American Mini Theaters, Inc. 427 U.S. 50 (1976) . . . . .24 Zemel v. Rusk, 381 U.S. 1 (1964) . . . . . . . . . . . . . . . . .17 Statutes 5 U.S.C. 701(a)(1) . . . . . . . . . . . . . . . . . . . . . .v, 5 22 U.S.C. 2778 . . . . . . . . . . . . . . . . . . . . . . . . . v 22 U.S.C. 2778(a)(1) . . . . . . . . . . . . . . . . . . . .2,5,10 22 U.S.C. 2278(b)(2) . . . . . . . . . . . . . . . . . . . . . . 2 22 U.S.C. 2778(h). . . . . . . . . . . . . . . . . . . . . . v,5,6 50 U.S.C. App. 2401 et seq.. . . . . . . . . . . . . . . . . . . 6 Regulations 22 C.F.R. Subchapter M, Parts 120 to 130 . . . . . . . . . . . . . v - iii - 22 C.F.R. 121.1 XIII(b)(2) ("Category XIII(b)(2)") . . . . .passim 22 C.F.R. 120.1(a) . . . . . . . . . . . . . . . . . . . . . . . 2 22 C.F.R. 120.4. . . . . . . . . . . . . . . . . . . . . . . .3,18 22 C.F.R. 120.4(c) . . . . . . . . . . . . . . . . . . . . . . .19 22 C.F.R. 120.10(a)(5) . . . . . . . . . . . . . . . . . . . . .22 22 C.F.R. 120.11 . . . . . . . . . . . . . . . . . . . . . . . .22 22 C.F.R. 120.17 . . . . . . . . . . . . . . . . . . . . . . . .21 22 C.F.R. 125.03 . . . . . . . . . . . . . . . . . . . . . . . .21 22 C.F.R. 125.4. . . . . . . . . . . . . . . . . . . . . . . . .22 49 Fed. Reg. 47683 (Dec. 6, 1984). . . . . . . . . . . . . . . . .22 - iv - ISSUES PRESENTED 1. Whether the Court lacks subject matter jurisdiction to review the designation of a defense article on the United States Munitions List ("USML") on the ground that such review is precluded under 22 U.S.C. 2278(h) and the Administrative Procedure Act, 5 U.S.C. 701(a)(1), and on the ground that the designation of a defense article on the USML is a non- justiciable political question. 2. Whether the plaintiff has a colorable constitutional claim: (a) that the commodity jurisdiction determinations by the State Department that plaintiff's cryptographic software is covered by the United States Munitions List violate the First Amendment; or (b) that the Arms Export Control Act ("AECA"), 22 U.S.C. 2278, and the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Subchapter M, Parts 120 to 130, are unconstitutional, on their face and as applied, with respect to cryptographic software and technical data. INTRODUCTION This case concerns policies of the Executive branch which Congress and the courts have made clear are not subject to judicial review. At issue are two "commodity jurisdiction" determinations in which the United States Department of State determined that plaintiff's "cryptographic" software -- software that operates to encrypt information and communications on a computer system -- is included on the United States Munitions List ("USML") and may not be exported without a license from the State Department. Plaintiff transforms these two determinations, which are comprised of a few paragraphs, into a 53-page Complaint making broad claims that the government's policy violates the First Amendment. Congress has specifically precluded judicial review of the designation of commodities subject to export licensing controls. Furthermore, the Court of Appeals for the Ninth Circuit has held that whether a commodity should be subject to export controls is a non-justiciable political question. Plaintiff seeks to circumvent this established law by raising what he characterizes as constitutional claims challenging the government's actions. The Court should find that plaintiff has not stated a colorable constitutional claim and, therefore, cannot overcome the clear presumption against judicial review in this case. Even if regulation of the export of plaintiff's software could be construed to restrict "speech" to foreign persons, such a restriction is incidential to regulating the conduct of exporting functioning, operational cryptographic software. Under the O'Brien test, such an incidental restriction on plaintiff's alleged expression easily passes constitutional muster. In particular, export controls on cryptographic software are unrelated to any expressive value that such an export might have, and the government's interests at issue here are significant. A critical national security interest of the United States is to maintain an effective capability to gather foreign intelligence information. The United States, through export restrictions, seeks to control the widespread foreign availability of cryptographic devices and software which might hinder its foreign intelligence collection efforts. The government's actions in this case are directed not at expression, but at the conduct of exporting a commodity that the Executive branch has determined should be controlled in the interests of national security. STATUTORY AND REGULATORY BACKGROUND The Arms Export Control Act ("AECA") authorizes the President to control the import and export of defense articles and defense services, and to designate such items for inclusion on the United States Munitions List. 22 U.S.C. 2778(a)(1). Except as otherwise provided by implementing regulations, no defense articles or defense service so designated by the President may be imported or exported without a license. Id. 2278(b)(2). The AECA is implemented by the International Traffic in Arms Regulations ("ITAR"). Part 121 of the ITAR contains the United States Munitions List. The category of the USML relevant to this case is Category XIII(b)(1), which lists as defense articles, "Information Security Systems and equipment, cryptographic devices, software, and components specifically designed or modified therefor, including: (1) Cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components or software with the capability of maintaining secrecy or confidentiality of information or information systems, except cryptographic equipment and software [as described under Category XIII(b)]. The ITAR contains a "commodity jurisdiction" procedure to be used when doubt exists as to whether a particular article or service is covered by the USML. Upon written requests, the Office of Defense Trade Controls will provide such a determination. 22 C.F.R. 120.4. FACTUAL BACKGROUND By letter dated June 30, 1992, plaintiff Daniel J. Bernstein submitted a commodity jurisdiction request to the State Department for his "snuffle 5.0 software." Lowell Decl. para. 8 and Tab 3. The request described this software, including a system to encrypt information, called "snuffle.c," and a system to decrypt information, called "unsnuffle.c". Id. By letter dated August 20, 1992, the State Department advised Mr. Bernstein that his snuffle 5.0 software is designated as a defense article under Category XIII(b)(1) of the United States Munitions List and is subject to the licensing jurisdiction of the State Department. Lowell Decl. para. 9 and Tab 4. By letter dated July 15, 1993, Mr. Bernstein submitted a second commodity jurisdiction request for his snuffle software, accompanied by information which explained how it may be programmed to encrypt communications on a computer system. Lowell Decl. para. 13, 19 and Tab 16. By letter dated October 5, 1993, the State Department advised plaintiff that snuffle software is cryptographic source code for data encryption and is designated as a defense article on the USML. Id. para. 15 and Tab 18. The sole administrative actions taken by the State Department at issue here were these two commodity jurisdiction determinations. Lowell Decl. para. 21. Pursuant to these determinations, plaintiff's snuffle cryptographic software is designated as a defense article covered by Category XIII(b)(1) of the United States Munitions List. Id. Accordingly, Mr. Bernstein was advised that if he wished to export his software from the United States, he must first obtain a license from the State Department. Id. Mr. Bernstein did not apply for a license to export his snuffle software. Id. Other than the commodity jurisdiction procedure, no other provision of the ITAR has been applied by the State Department to Mr. Bernstein. Id. Plaintiff challenges these CJ determinations, and the authority under which they were made, on several constitutional grounds, including that the AECA and ITAR. on their face or as applied, establish a prior restraint on speech protected by the First Amendment, and are impermissibly overbroad and vague. Compl., Counts I-VI. ARGUMENT I. A CHALLENGE TO THE DESIGNATION OF A COMMODITY AS INCLUDED ON THE UNITED STATES MUNITIONS LIST IS NOT JUSTICIABLE. The Secretary of State has exercised the statutory authority delegated to him by the President to determine that cryptographic software should be designated a "defense article" on the USML subject to export licensing restrictions, "[i]n furtherance of world peace and the security and foreign policy of the United States." 22 U.S.C. 2778(a)(1). The Secretary, through his designee -- the Director of the Office of Defense Trade Controls -- further determined the plaintiff's snuffle 5.0 software is such a designated defense article. For both statutory and constitutional reasons, plaintiff may not challenge the wisdom or propriety of these decisions. The Arms Export Control Act provides that the "designation by the President (or by an official to whom the President's functions . . . 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." 22 U.S.C. 2778(h). There is no ambiguity about this statute: plaintiff may not challenge in this Court whether the Secretary of State should have designated cryptographic software on the USML, nor challenge the State Department's designation of plaintiff's software as falling within that category of covered defense articles. Nor may this Court second-guess those decisions. The non-justiciability of the designation of cryptographic software on the USML is compelled not only by 2778(h), but by the Constitution as well. "The question whether a particular item should have been placed on the Munitions List possesses nearly every trait that the Supreme Court has enumerated [that] traditionally renders a question 'political.'" United States v. Martinez, 904 F.2d 601, 602 (11th Cir. 1990) (citing Baker v. Carr, 369 U.S. 186, 217 (1962)). Accord United States v. Helmy, 712 F. Supp. 1423 (E.D. Cal. 1989). As the Eleventh Circuit has explained: No satisfactory or manageable standards exist for judicial determination of the issue, as defendants themselves acknowledge the disagreement among experts as to whether [the particular item] belongs to the list. Coleman v. Miller, 307 U.S. 433, 454-55. . . (1939). Neither the courts nor the parties are privy to reports of the intelligence services on which this decision, or decisions like it, may have been based. Chicago & Southern Air Lines [v. Waterman SS. Corp.], 333 U.S. [103] 111 [(1948)]. The consequences of uninformed judicial action could be grave. Questions concerning what perils our nation might face at some future time and how best to guard against those perils "are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. . . . " Id. Martinez, 904 F.2d at 602. The Court of Appeals for the Ninth Circuit has addressed the reviewability of the designation of specific commodities as subject to export controls in the closely analogous context of the Export Administration Act ("EAA"), 50 U.S.C. App. 2401 et seq., administered by the Department of Commerce. Like the AECA and USML, the EAA prohibits the exportation of commodities designated on what is now called the "Commerce Control List" ("CCL") without first obtaining a license from the Secretary of Commerce. On three separate occasions, the Ninth Circuit held that Congress intended that the Secretary of Commerce's designation of a commodity on the CCL, and the Secretary's specific determination that a particular item at issue is included in a CCL category, are not subject to judicial review. See United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1472-73 (9th Cir. 1988), cert. denied, 493 U.S. 809 (1989); United States v. Mandel, 914 F.2d 1215, 1218-20 (9th Cir. 1990); United States v. Bozarov, 974 F.2d 1037, 1041-45 (9th Cir. 1992); cert. denied, 113 S.Ct. 1273 (1993). In addition, in Mandel, the Ninth Circuit held that the political question doctrine bars review of the Secretary of Commerce's determination as to whether restrictions must be placed on the export of a particular commodity. 914 F.2d at 1222-23. The court held that such determination "are quintessentially matters of policy entrusted by the Constitution to the Congress and the President, for which there are no meaningful standards of judicial review." Id. at 1223. Accord United States v. Moller-Butcher, 560 F. Supp. 550, 553- 54 (D. Mass. 1983). In sum, both the AECA and the Constitution bar judicial review of whether cryptographic software -- and in particular, plaintiff's snuffle software -- "belongs" on the USML, Martinez, 904 F.2d at 601, whether such software "should have been placed" on the USML, Id. at 602, or whether there was "any basis in fact," Mandel, 914 F.2d at 1222-23, for the Secretary's decision to place such software on the USML and subject it to export licensing. Accordingly, insofar as plaintiff's claims raise, or even implicate, such questions, they are non-justiciable. The linchpin of plaintiff's claim to judicial review is a statement by the court in Bozarov, that despite the EAA's seemingly absolute preclusion of review, . . . "colorable constitutional claims may be reviewed by the courts even when a statute otherwise precludes judicial review." 974 F.2d at 1044 (citing Webster v. Doe, 486 U.S. 592 (1988)). The court in Bozarov did not reach the impact of its prior holding in Mandel that the designation of items on the CCL constitute non- justiciable political questions. 974 F.2d at 1045 n.9. See Mandel, 914 F.2d at 1218 (constitutional due process challenge to the Secretary's administrative decision to designate a commodity on the CCL is a non-justiciable political question). Nonetheless, even assuming, arguendo, that colorable constitutional challenges to the designation of a commodity as export controlled may be justiciable, the plaintiff should not be permitted to obtain judicial review merely by invoking the Constitution. On the contrary, because decisions in this area are presumptively subject to the exclusive judgment of the Executive branch, the Court should closely scrutinize whether plaintiff has stated a colorable constitutional claim. See Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). As set forth below, plaintiff has raised no colorable claim, for two reasons. First, this claim does not concern "speech" protected by the First Amendment, but the conduct of exporting a functioning defense article. Moreover, even if the State Department's control of the export of cryptographic software incidentally infringes on plaintiff's ability to engage in some protected expression, such an incidental infringement easily passes First Amendment muster under O'Brien v. United States, 391 U.S. 367 (1968). For this reason, the Court should find that it lacks jurisdiction to review plaintiff's claims. II. PLAINTIFF HAS NOT RAISED ANY COLORABLE CONSTITUTIONAL CLAIM SUBJECT TO JUDICIAL REVIEW. A. The Determination That Plaintiff's Cryptographic Software is Covered by the USML Does Not Constitute the Regulation of Speech. An obvious starting point for a First Amendment analysis is whether speech itself is at issue. The major theme of plaintiff's complaint is that the State Department, through its commodity jurisdiction determinations, seeks to regulate plaintiff's right to "publish" a "scientific paper" or "to engage in academic inquiry" and "to openly discuss" ideas related to cryptography. See Compl. paras. 1, 3, 78-79, 172-73. As explained below, the State Department's CJ determinations do no such thing. What the Department did was determine that plaintiff could not export his cryptographic software without an export license. This determination, however, does not constitute the regulation of expression. As is evident from plaintiff's first submission to the State Department in June, 1992, snuffle 5.0 is cryptographic software that functions to encrypt communications on a computer system. See Tab 3 to Lowell Declaration. As Mr. Bernstein explained, the Snuffle encryption system can be used to exchange encrypted text between two people "who have previously exchanged keys" that would enable them to read the message. Id. This system could work with "zero-delay," meaning that "Snuffle can be used for interactive conversations: each character typed by one person can be encrypted, sent to the other person, and decrypted by the other person immediately." Id. Mr. Bernstein also stated that the Snuffle 5.0 computer software program "can be used for various applications requiring private key cryptography, including the example above of interactive text exchange." Id. The National Security Agency, which undertook a technical evaluation of snuffle software, confirmed that snuffle is in fact cryptographic software capable of maintaining the secrecy or confidentiality of data. See Declaration of Louis Giles, National Security Agency, paras. 16, 17. Cryptographic software, like Mr. Bernstein's snuffle software, is considered to be a functioning cryptographic product essential to encrypting data on a computer system. Id. para. 17. The First Amendment protects conduct only if it is (or could be) expressive to other persons. The conduct must be "'sufficiently imbued with elements of communication to fall within the scope of the . . . [First Amendment].'" Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409 (1974). In deciding whether certain conduct is "sufficiently imbued with elements of communication," the Court looks to "whether '[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.'" Id. (quoting Spence, 418 U.S. at 410- 11). The export of cryptographic software is not "'sufficiently imbued with elements of communication," nor does it "convey a particularized message" to its foreign recipients. While plaintiff characterizes this case as concerning his right to "publish" a "paper," what he submitted to the State Department for a commodity jurisdiction determination was not an academic discourse on algorithmic theories. Plaintiff submitted source code for data encryption, along with instructions on how to make it operational on a computer so that users could have an interactive, zero-delay, encrypted conversation. Based on plaintiff's own description, the dissemination of snuffle software would have a functional, rather than a communicative purpose: so that individuals may use the designation of cryptographic software as a defense article on the USML does not constitute the regulation of expression upon which a colorable constitutional claim may be based. B. Under O'Brien v. United States, the Regulation of Cryptographic Software on the USML Furthers Legitimate Governmental Interests that are Unrelated to the Suppression of Expression Assuming, arguendo, that plaintiff could "demonstrate that the First Amendment even applies" to his export of cryptographic software, Clark v. Community for Creative Non- Violence, 468 U.S. 288, 293 n.5 (1984) ("CCNV"), nonetheless his constitutional claims are not colorable. The State Department's commodity jurisdiction determinations do not run afoul of First Amendment principles because any impact on plaintiff's "speech" would be incidental to the government's regulation of the conduct of exporting cryptographic software. In O'Brien v. United States, supra, the Supreme Court established the standard for evaluating the government's regulation of conduct which might, in its particular applications, impose incidental restrictions on speech. See also CCNV, 468 U.S. at 294; Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2469 (1994). Under O'Brien, an incidental restriction will be sustained if: (i) it is within the constitutional power of the government; (ii) it furthers an important or substantial governmental interest; (iii) the governmental interest is unrelated to the suppression of free expression; and (iv) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 391 U.S. at 377. It can readily be seen that the first two prongs of the O'Brien test are met here. First, regulation of the exportation of defense articles is squarely within the power of Congress to provide for the common defense and regulate foreign commerce. U.S. Const., Art. I, 8. Moreover, the governmental interest at stake -- to control the availability of cryptography from the United States so that critical foreign intelligence gathering functions are not harmed -- is undoubtedly a substantial one. The National Security Agency's "signals intelligence" mission is conducted through sophisticated collection technologies that allow NSA to obtain information from foreign electromagnetic signals, many of which are encrypted. Giles Decl. para. 4. A core NSA activity is "cryptanalysis" -- the science of determining the content of coded messages. Id. Based on information derived from these activities, NSA provides reports on a rapid-response basis to national policy- makers and military commanders. Id. Such intelligence gathering efforts are critical, for example, to ensuring the effective accomplishment of military missions with minimal loss of life. Lowell Decl. para. 7. Policies concerning the export control of cryptographic products are based on the fact that proliferation of such products will make it easier for foreign intelligence targets to deny the United States access to information vital to national security interests. Giles Decl. para. 4. This is a governmental interest that is at least as compelling, if not more so, than other interests the Supreme Court has previously found met the O'Brien standard. Moreover, as noted, the determination that cryptographic software like snuffle should be considered a "defense article" subject to export control "[i]n furtherance of world peace and the security and foreign policy of the United States," 22 U.S.C. 2278(a)(1), is not one for courts to evaluate. The third O'Brien prong -- that the regulation is unrelated to the suppression of free express -- is also satisfied. On its face, the ITAR concerns the regulation of the export of defense articles and services, and not speech or expression. Category XIII(b)(1) of the USML pertains to cryptographic products and software "with the capabilities of maintaining secrecy or confidentiality of information systems . . . ." The focus of this category is on the function of the commodity. Cryptographic software is not merely "know how" that explains how cryptography works, or a description of scientific ideas or information related to cryptography. Giles Decl. para. 17. Rather, it is because of its function and capability to encrypt information that snuffle software is covered by the USML and subject to ITAR controls. Id. As such, the regulation is unrelated to the suppression of speech. The final O'Brien prong -- that the incidental restriction on alleged First Amendment freedoms be no greater than is essential to the furtherance of the state interest -- is also met here. To satisfy this standard, a regulation "need not be the least restrictive or least intrusive means of doing so." Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). Rather, the requirement of narrow tailoring is satisfied 'so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Id. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). See also CCNV, 468 U.S. at 297 ("if the parks would be more exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment"). Inclusion of certain cryptographic software on the USML satisfies this standard. Such software is regulated in furtherance of a substantial national security interest to protect the United States' signals intelligence capabilities that are utilized to provide essential information to national security policymakers and military commanders. This interest would be "more exposed to harm" without the export restrictions than with them. CCNV, 468 U.S. at 297. At the same time, however, the scope of the ITAR's regulation of cryptographic software is limited. Category XIII(b) excludes certain cryptographic software that does not maintain data confidentiality or secrecy (such as for data authentication and financial functions), as well as mass market software products with limited encryption capabilities. See Giles Decl. paras. 7-9; Lowell Decl. para. 18 and Tab 20. By excluding such cryptographic software that does not pose a risk to national security, the ITAR "'responds precisely to the substantive problems which legitimately concern the [Government].'" CCNV, 468 U.S. at 297 (quoting Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984)). A case touching upon the O'Brien test in the specific context of export controls is United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978). There, the court of appeals construed the important interests served by the ITAR in a manner that did not infringe First Amendment freedoms. The court reviewed a conviction for exporting, without a license, technical data relating to a defense article on the United States Munitions List. 579 F.2d at 518. The defendant claimed that the government's attempt to regulate technical data was contrary to the First Amendment. Id. at 519. The court initially noted that "[b]y regulating conduct, the Government may pursue its legitimate objectives even though incidental limitations on expression may result." Id. at 520. In construing the ITAR's controls as to the export of technical data, the court held that the statute and regulations "do not interfere with constitutionally protected speech" but, "[r]ather, they control the conduct of assisting foreign enterprises to obtain military equipment and related technical expertise." Id. at 521. It follows from Edler that if the government may incidentally restrict the transmission of technical data by making it unlawful to assist a foreign national in the development of a functioning defense article, it may, consistent with the First Amendment, regulate the exportation of the functioning defense article itself, even if such regulation may, in certain cases, incidentally inhibit "expression." See also Zemel v. Rusk, 381 U.S. 1, 16-17 (1964) ban on travel to Cuba by the Secretary of State does not violate the First Amendment since it inhibits action, not speech). For these reasons, the Court should find that plaintiff has not stated a colorable claim that the government's actions abridge his First Amendment rights. C. The Commodity Jurisdiction Determinations Do Not Constitute a "Prior Restraint" on Speech. Plaintiff claims that the defendants' actions constitute a "prior restraint" on the "publication of scientific papers, algorithms or computer programs." Compl., para. 94. He alleges that, before a "scientific paper" containing ideas about cryptography may be published, an individual must first obtain a commodity jurisdiction determination from the State Department, then register with ODTC, and finally obtain a license to publish the paper. Id. paras. 94-97 and Counts II-IV. Plaintiff's prior restraint claim is the product of his own misinterpretation of the facts and the ITAR. The State Department determined that plaintiff's snuffle software is a source code for data encryption covered by Category XIII(b) of the USML. It is true that those who wish to export a defense article on the USML, such as cryptographic software, must register with the State Department and obtain a license in advance. But nowhere do the commodity jurisdiction determinations indicate that plaintiff is barred from publishing a scientific paper concerning the theory of snuffle, or expressing ideas about cryptography in general. What plaintiff cannot do is export snuffle software without first obtaining a license from the State Department. Thus, to the extent the prior restraint claim is premised on the notion that the export of snuffle software constitutes "speech" to foreigners, then, as explained above, the First Amendment is not implicated because this software functions to encrypt data on a computer, and control of its export is unrelated to any incidental restriction on expression that such an export might entail. Plaintiff's prior restraint claim is also unfounded to the extent it is based on the theory that the commodity jurisdiction determinations sought to restrain the publication of the explanatory information plaintiff submitted with his second CJ request (DJBCJF-2, 5 and 6). See Lowell Decl. para. 19. First, as a factual matter, plaintiff described his first CJ request (CJ-191-92) as concerning "snuffle 5.0 softward." See Tab 3 to Lowell Declaration. For his second CJ request (CJ-214-93), plaintiff attached to every submission, including the explanatory material, a cover letter that contained an identical sentence stating that the item at issue in the CJ request "was originally designed to convert any one-way hash function into a zero-delay private-key encryption system." See Tab 16 to Lowell Declaration. This reference is to functioning cryptographic software, indicating that plaintiff again sought a determination for snuffle. In its June 29, 1995 letter, the State Department advised plaintiff that its CJ determinations pertained solely to the snuffle software. Lowell Decl. para. 19 and Tab 21. Likewise, the National Security Agency used the explanatory information submitted by Mr. Bernstein to evaluate the snuffle software, but did not assess that information separately for export control purposes. Giles Decl. para. 14. Thus, the CJ determinations did not constitute a restriction on the publication of these explanatory items, and there is no basis for plaintiff's prior restraint claim. Also in its June 29 letter, the State Department indicated that the information at DJBCJF-5 and DJBCJF-6, submitted with the second CJ request, constitutes technical data, since it provides instructions on how snuffle may be programmed on a computer in order to encrypt and decrypt information. Consistent with Edler, the Department advised Mr. Bernstein that he would need a license to export technical data if his objective were to assist a foreign person or enterprise in obtaining or developing his cryptographic software. See Edler, 579 F.2d at 521 (ITAR regulation of the export of technical data to assist a foreign national in the development of a defense article on the USML is not "an unconstitutional prior restraint on speech"). Accordingly, as a matter of law, plaintiff does not have a colorable prior restraint claim. D. The ITAR is not Unconstitutionally Overbroad. Plaintiff also claims that the AECA and ITAR violate the First Amendment on overbreadth grounds. Compl., Count VI, paras. 148-164. Under the overbreadth doctrine in First Amendment cases, a litigant may challenge a statute as overbroad on its face, even if it were applied fairly to him and did not abridge his rights. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); United States v. Stansell, 847 F.2d 609, 612 (9th Cir. 1988). Nonetheless, overbreadth is "strong medicine" to be applied "sparingly and only as a last resort." Broadrick, 413 U.S. at 6l3. Where, as here, "conduct and not merely speech is involved, . . . . the overbreadth of the statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. at 615; Stansell, 847 F.2d at 613; United States v. Top Sky, 547 F.2d 486, 489 (9th Cir. 1976). Here, plaintiff alleges that the ITAR is overbroad because 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." See Compl. paras. 152-153. Plaintiff's overbreadth claim is foreclosed by the decision in Edler, in which the court of appeals has already provided a limiting, constitutional construction of the technical data provisions of the ITAR, and has ruled that those provisions, so construed, are not unconstitutionally overbroad. In Edler, the court reviewed the definition of the "export of technical data" in the ITAR, see 579 F.2d at 519 (discussing 22 C.F.R. 125.03 (1977)), and acknowledged that "an expansive interpretation of technical data relating to items on the Munitions List could seriously impede scientific research and publishing and the international scientific exchange." Id. But in response to an overbreadth challenge, the court undertook a construction of the statute and regulations to preserve their constitutionality. Id. at 519. See Broadrick, 413 U.S. at 613 (facial overbreadth should not be found" when a limiting construction has been or could be placed on the challenged statute"). The court construed the definition of the export of technical data under the ITAR and found that "the statute and regulations are not overbroad" because, as noted supra, they "do not interfere with constitutionally protected speech" but "control the conduct of assisting foreign enterprises to obtain military equipment and related technical expertise. Id. at 521. The court of appeals' construction of the technical data provisions of the ITAR in Edler still governs the interpretation of those regulations. Though the ITAR has been revised since Edler, its treatment of technical data has only become more solicitous of speech activities. For example, the current definition of technical data that is subject to export licensing specifically excludes "information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges, and universities." 22 C.F.R. 120.10(a)(5). Also excluded from the definition of technical data is information in the "public domain," including information "which is published and which is generally accessible and available to the public" through sales at newsstands and bookstores, subscriptions, the mail, libraries, and "through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States" and "through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community." 22 C.F.R. 120.11. To state an overbreadth claim, it is not enough "that one can conceive of some impermissible applications of statute"; rather, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." Taxpayers for Vincent, 466 U.S. at 800-01. In view of the Edler decision, and the provisions of the ITAR that exclude First Amendment activities from its scope, plaintiff cannot state a colorable overbreadth claim. E. Plaintiff Does Not State a Colorable Claim that the ITAR is Impermissibly Vague Plaintiff's claim that the AECA and ITAR violate the First Amendment on vagueness grounds, Compl. County V, paras. 134-147, are also not colorable. As with his overbreadth challenge, plaintiff may not raise a vagueness challenge if "the statute's deterrent effect on legitimate expression is not 'both real and substantial' and if the statute is 'readily subject to a narrowing construction." Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976) (citation omitted). The court in Edler has already provided the "narrowing construction" that resolves several bases of plaintiff's vagueness challenge. See Compl. paras. 137-38, 141 (challenging exemptions to technical data as vague). Plaintiff's claims that the definition of cryptographic software is both vague and overbroad, Compl. paras. 136, 142, 159, are also without merit. The definition of cryptographic software as that "with the capability of maintaining secrecy or confidentiality" is surely susceptible to common understanding by "a person of ordinary intelligence." Plaintiff's own description of the function of his software as to encrypt an interactive conversation on a computer, see Tab 3 to Lowell Declaration, reflects that it functions to "maintain the secrecy" of communications. Moreover, Category XIII(b) excludes other types of cryptographic software (for data authentication and financial functions), as well as "mass- market" software that meets specific encryption criteria, and therefore, both clarifies and limits the scope of the ITAR. See Giles Decl. paras. 7-9 and Lowell Decl. para. 18 and Tab 20. Accordingly, the ITAR provisions on cryptographic software are neither vague nor overbroad. Finally, plaintiff's challenge to the criminal sanctions in the AECA for "willful" violations, Compl. para. 143, is disposed of by long-established authority. The court of appeals has held that the "willful" requirement in the AECA can be satisfield only if a defendant acts "with the specific intent to do . . . what he knows is unlawful". United States v. Lizarraga-Lizarraga, 541 F.2d 826, 828-29 (9th Cir. 1976) (construing 22 U.S.C. 1934, the predecessor to AECA sec. 2778). Such a scienter requirement forecloses potential vagueness problems as to criminal enforcement. Posters 'N' Things, Ltd. v. United States, 325 U.S. 91, 102-03 (1945) (plurality opinion); United States v. Margiotta, 688 F.2d 108, 129 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983). CONCLUSION For the foregoing reasons, this action should be dismissed for lack of subject matter jurisdiction. Respectfully submitted, FRANK W. HUNGER Assistant Attorney General MICHAEL J. YAMAGUCHI United States Attorney MARY BETH UITTI Assistant United States Attorney 450 Golden Gate Avenue San Francisco, CA 94102 (415) 556-6430 _________________________________ VINCENT M. GARVEY ANTHONY J. COPPOLINO Department of Justice Civil Division, Room 1020 901 E Street, N.W. Washington, D.C. 20530 Tel. (Voice): (202) 514-4782 Fax: (202) 616-8470 or (202) 616-8460 Attorneys for Defendants