CINDY A. COHN, ESQ.; SBN 145997 McGLASHAN & SARRAIL Professional Corporation 177 Bovet Road, Sixth Floor San Mateo, California 94402 Telephone (415) 341-2585 Facsimile (415) 341-1395 Attorneys for DANIEL J. BERNSTEIN UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN, an individual, ) Case No. C 95-0582 MHP ) Plaintiff, ) ) DECLARATION OF ) CINDY A. COHN, ESQ., IN v. ) SUPPORT OF REQUEST FOR ) DENIAL OF DEFENDANTS UNITED STATES DEPARTMENT OF ) MOTION TO DISMISS UNDER STATE, et. al., ) F.R.C.P. 56(f) ) Defendants. ) ________________________________________) I, CINDY A. COHN, declare as follows: 1. I am attorney at law associated with the law firm of McGlashan & Sarrail, Professional Corporation, duly admitted to practice law in the State of California and the Northern District of California, and am one of Plaintiff's attorneys of record in the current case. I have personal knowledge of the facts set forth herein, unless otherwise indicated, and if called as a witness could and would so testify. 2. Although Defendants' moving papers are cast solely as a Motion to Dismiss under F.R.C.P. 12(b)(1) and 12(b)(6), and not as a Motion for Summary Judgment or in the alternative, this Court has discretion to convert this Motion into a Motion for Summary Judgment. Therefore, this Declaration is submitted under the provisions of F.R.C.P. 56(f) in the event that this Court wishes exercise its authority to convert Defendants' Motion to Dismiss to a Motion for Summary Judgment and in accordance with the Court's invitation to Plaintiff at the Case Management Conference to explain the need for discovery. 3. If the Court construes Defendants' Motion to Dismiss as a Motion for Summary Judgment, Plaintiff requests that he be allowed time to present extrinsic evidence he has gathered in support of his case to the Court, in accordance with F.R.C.P. 12(b). 4. In addition, Plaintiff submits that if the Court construes Defendants' Motion to Dismiss as a Motion for Summary Judgment, discovery is required in order to defend against such a motion. Because Plaintiff has had no discovery, and because Defendants have not moved for summary judgment under F.R.C.P. 56, this affidavit is not as complete as it would be if offered in the usual circumstances where Plaintiff has full notice of either the precise legal or factual issues contested by Defendant. However, while Plaintiff cannot exhaustively set forth in this ambiguous context every material of issue of fact for which discovery is needed, he can provide the Court with a general overview of his intended discovery. 5. Plaintiff's claim of an unlawful prior restraint logically depends on the basic factual premise that Defendants' scheme restrains or is likely to restrain speech protected by the First Amendment. At present, Plaintiff is able to show that his own speech has been restrained. He can also show that the speech of other individuals known to him has also been restrained, in that they have refrained from publishing for fear of violating the AECA. Discovery is needed, however, to establish the extent to which Defendants have restrained the speech of individuals similarly situated. 6. Plaintiff's unlawful prior restraint claim also depends on the absence of a sufficient justification by the government for its prior restraint, namely, that as applied to plaintiff, or on its face, this prior restraint scheme is valid because publication will surely result in significant, direct, immediate, and irreparable harm to our nation or its people. Assuming, arguendo, that the government has met its initial burden of demonstrating such a justification with the requisite specificity, discovery will be needed to contest the government's evidence. For instance, Defendants have declared that the uncontrolled availability abroad of cryptographic devices and software would hinder the United States' ability to gather foreign intelligence. See Declaration of Louis F. Giles of the National Security Agency, filed with Defendants Motion to Dismiss. 6. Discovery is likely to show that any such harm is a speculative prediction, is unsupported by facts, would not be a direct result of publication, would not occur immediately and would not be irreparable. In particular, plaintiff is informed and believes that Defendants possess information about the widespread foreign availability of cryptographic software stronger than that which plaintiff seeks to publish. Therefore, plaintiff is likely to discover that cryptographic information, including software, is widely available throughout the world, and that the pre-publication licensing scheme of Defendants does not in fact further any proffered significant government interest. 7. Plaintiff is also informed and believes that Defendant National Security Agency has stated in written response to questions by the Senate Subcommittee on Technology and the Law at hearings held on or about May 3, 1994 that "Encryption software distribution via Internet, bulletin board, or modem does not undermine the effectiveness of encryption export controls." Discovery will ascertain that NSA in fact made such statement to Congress and will uncover the factual premises underlying this statement. If so, then Plaintiff's intended actions of publishing his work to the Usenet newsgroup sci.crypt, as well as actions by persons similarly situated, is unlikely to cause harm significant enough to justify this prior restraint scheme. 8. If discovery is allowed, plaintiff will utilize both the subpena power as to third parties and its ability to conduct discovery from Defendants, to gather additional evidence necessary to prove the allegations of his Complaint, including, but not limited to: (a) What are the domestic, nonmilitary uses of cryptography to maintain privacy of communication; (b) Whether "direct, immediate and irreparable damage" or even indirect, non-immediate and reparable damage will result from the publication of Plaintiff's items; (c) Whether the normal, scientific method for developing the science of cryptography includes the communication of computer code; (d) How online discussion groups about science are an integral part of the development of science, in the same way as print journals and academic conferences; (e) How, in fact, Defendants have implemented and administered the ITAR; (f) Whether Defendants are, in practice, asserting jurisdiction over merely "software which functions to encrypt" as they now claim; (g) What factual support exists for Defendants claims that the ITAR, as applied to Plaintiff, is necessary or even helpful to Defendants to reach their stated goals; (h) Whether the ITAR, on its face or as applied by Defendants to Plaintiff and others, impairs protected speech or otherwise exceeds the scope necessary to meet its alleged goals; (i) Whether persons of ordinary intelligence can understand the regulatory terms as used by the ITAR such as: "software," "technical data,"public domain,""information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities," and "software with the capability of maintaining secrecy," as well as other terms such that it is clear and certain at any point in time what is being regulated and what is not; (j) Whether computer code, especially source code, has communicative purposes between human readers; (k) Whether it is arbitrary and capricious to allow communication of an idea in English or in mathematical symbols, while restricting communication of the same idea in the language of computer code; (l) Whether it is arbitrary and capricious to allow communication of an idea on printed paper or transmitted by other constitutionally protected means while restricting its communication on online discussion groups; (m) The ease of translating a scientific paper written in English or mathematical symbols into computer code; (n) The ease of translating computer code written on paper into functioning code through typing it into a computer or utilizing an optical character recognition scanner; (o) The arbitrariness of the regulatory distinction between authentication programs and encryption programs; (p) Whether Defendants have the statutory authority to suppress publication of Plaintiff's noncommercial items; (q) Whether Plaintiff's speech contributes to the current political debate concerning cryptography; 9. Such information cannot be presented at this time because there has been no formal discovery in this case, and Defendant's initial disclosures did not include this information. Plaintiff requires use of the Court's subpoena power, depositions, and other discovery procedures to ascertain this information. 10. Anticipated Discovery. a Depositions. i. Plaintiff anticipates deposing the following defendants within 90 days, or as soon thereafter as is reasonably possible, or as ordered by the Court: (1) Mark Koro, National Security Agency. Mr. Koro's exact duty title is unknown. It is anticipated that Mr. Koro will provide evidence of Defendants' implementation and administration of ITAR, and specifically how Defendants' determined that the Items are subject to ITAR. (2) Greg Stark, National Security Agency. Mr. Stark's exact duty title is unknown. It is anticipated that Mr. Stark will provide additional testimony similar to that of Mr. Koro. However, since the exact nature of Mr. Stark's and Mr. Koro's positions in the National Security Agency, and their working relationships, if any, are unknown, Plaintiff anticipates discovery of that information either by deposition, production of documents, interrogatory, or disclosure by Defendants. Plaintiff further anticipates that their testimony at deposition will be substantially different in content from each other so as to allow Plaintiff to ascertain a full and complete picture of these individual Defendants' involvement in implementing and administering the scheme of regulation. (3) Gary Oncale, Major, USAF, Bureau of Politico-Military Affairs, Office of Defense Trade Controls, Department of State. It is anticipated that Major Oncale will provide evidence of Defendants' implementation and administration of ITAR, and specifically how Defendants determined that the Items are subject to ITAR. (4) Michael Newlin, Acting Director, Defense Trade, Department of State. It is anticipated that Mr. Newlin will provide evidence of defendant's implementation and administration of ITAR, and specifically how Defendants determined that the Items are subject to ITAR. (5) Charles Ray, Bureau of Politico-Military Affairs, Office of Defense Trade Controls, Department of State. It is anticipated that Mr. Ray will provide evidence of defendant's implementation and administration of ITAR, and specifically how Defendants determined that the Items are subject to ITAR. (6) William B. Robinson, Director, Bureau of Politico-Military Affairs, Office of Defense Trade Controls, Department of State. It is anticipated that Mr. Robinson will provide evidence of defendant's implementation and administration of ITAR, and specifically how Defendants determined that the Items are subject to ITAR. ii. Plaintiff further anticipates deposing "DOE" defendants ascertained during the above mentioned depositions, or through other discovery, as soon thereafter as is reasonably possible, or as ordered by the Court. iii. Plaintiff further anticipates deposing, both orally and through the business records subpena power, known third-party witnesses, including, but not limited to: (1) Former and current employees of the Department of State and the NSA in order to determine the intended and applied scope of the ITAR regulations; (2) Persons in addition to Plaintiff who have been prevented from communicating about cryptography as a result of the regulations, including those prevented from speaking about it at academic conferences and on on-line discussion groups; (3) Persons who have been chilled in their communications about cryptography out of fear of the regulations, including those who wish to speak about it in academic classrooms and at academic conferences; (4) Persons who wish to communicate about cryptography but who have found that the regulations are drafted such that a person of ordinary intelligence cannot determine what is restricted and what is not; (5) Persons who can testify as to the effectiveness of the regulations in meeting Defendants' stated goals. For instance, persons will testify as to whether the regulations prevent foreign governments or citizens from using or obtaining strong cryptography; (6) Persons who can testify as to the possibility of "direct, immediate and irreparable damage" due to the disclosure of Plaintiff's ideas under the Pentagon Papers test, or even indirect, non-immediate and reparable damage; (7) Persons who can testify about the ongoing public debate about cryptography; (8) Persons who can testify as to the political value to them of Plaintiff's speech in the ongoing public debate about cryptography; (9) Persons who can testify about the effect of the regulations on the availability of U.S. companies to compete in the world-wide market of cryptographic products. iv. Depositions of Unknown Witnesses Plaintiff further anticipates deposing as yet unknown witnesses ascertained during the above mentioned depositions, or through other discovery, on the issues mentioned above and others raised during the course of discovery, as soon thereafter as is reasonably possible, or as ordered by the Court. v. Demands for Production. Plaintiff anticipates serving Demands for Production of Documents on Defendant as soon as the Court authorizes the parties to proceed with discovery. Plaintiff anticipates the documents requested will show, among others (1) The internal regulations, procedures and directives used by Defendants to implement and administer the ITAR; (2) The actual implementation of the ITAR; (3) Defendants testimony at Congressional hearings about the ITAR, including testimony directly contrary to the positions which Defendants have taken in this case; (4) Documents which provide factual support, if any exists, for Defendants assertions that their regulation of the communication of information about cryptography is necessary to further their stated goals. vi. Interrogatories. Plaintiff anticipates serving Interrogatories on Defendants as soon as the Court authorizes the parties to proceed with discovery. Plaintiff anticipates the interrogatories will allow Plaintiff to discover, among others, how Defendants use their internal regulations, procedures and directives to implement and administer the ITAR; vii. Expert Witnesses. Plaintiff reserves the right to designate expert witnesses who will testify about the issues described above. 11. I believe that the information outlined above will raise genuine issues of material fact and therefore, if Defendants' Motion to Dismiss is converted to a Motion for Summary Judgment, it should be denied. I declare under penalty of perjury that the foregoing is true and correct. Executed at San Mateo, California on _______________, 1995. _____________________________ CINDY A. COHN, ESQ. Attorney for Plaintiff Cindy A. Cohn McGlashan & Sarrail, P.C. 177 Bovet Road, 6th Floor San Mateo, CA 94402