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, ) ) REPLY MEMORANDUM OF POINTS vs. ) AND AUTHORITIES IN FURTHER ) SUPPORT OF DEFENDANTS' UNITED STATES DEPARTMENT OF ) MOTION TO DISMISS STATE, et al., ) ) Hearing: October 20, 1995 Defendants ) Time: 10:30 a.m. ) Place: Courtroom 11 ______________________________) TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. DEFENDANTS' COMMODITY JURISDICTION DETERMINATIONS CONCERN WHETHER PLAINTIFF MAY EXPORT SNUFFLE CRYPTOGRAPHIC SOFTWARE . . . . . . . . . . . . . . . . . . . 2 A. The Commodity Jurisdiction Determinations, On Their Face, Concern the Exportation of Cryptographic Software . . . . . . . . . . . . . . 4 B. Plaintiff Cannot Demonstrate a Genuine Dispute of Material Fact Under Rule 56 Standards. . . . . . . . . . . . . . . . . . . . . 6 1. There Is No Genuine Issue That the CJ Determinations Concerned Snuffle Cryptographic Software . . . . . . . . . . . . . . 7 2. Plaintiff's Rule 56(f) Affidavit Fails to Identify Discovery Directed at Genuine Issues of Material Fact. . . . . . . . . . . . . . 8 II. PLAINTIFF CONCEDES THE COURT MAY NOT REVIEW THE DESIGNATION OF DEFENSE ARTICLES ON THE USML . . . . . . . . 10 III. PLAINTIFF DOES NOT STATE A COLORABLE "PRIOR RESTRAINT" CLAIM SUBJECT TO JUDICIAL REVIEW . . . . . . . . 11 IV. DEFENDANTS' ACTIONS WERE NOT "ULTRA VIRES". . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 - i - TABLE OF AUTHORITIES Cases Page(s) Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . 3 Black v. Payne, 591 F.2d 83 (9th Cir. 1979). . . . . . . . . . . 3 Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439 (9th Cir. 1986) . . . . . . . . . . . . . . . . 7 Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . . 4 Doe v, Schachter, 804 F.2d 53 (N.D. Cal. 1992) . . . . . . . 4, 5, 6 Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990) . . . . . . . . 3 Garraux v. Pulley, 739 F.2d 437 (9th Cir. 1984) . . . . . . . . 6 McCarth v. United States, 850 F.2d 558 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989) . . . . . 3 Mission Indians v. American Management & Amusement, Inc., 824 F.2d 710, 716 (9th Cir. 1987) . . . . . . . . . . . . . . 7 NL Industries, Inc. v. Kaplan, 792 F.2d 896 (9th Cir. 1986). . . 4 O'Brien v. United States, 391 U.S. 367 (1968) . . . . . . . . . 7 Roberts v. Corrothers, 812 F.2d 1171 (9th Cir. 1987) . . . . 3, 4, 6 Sun Valley Gasoline, Inc. v. Ernst Enterprises, Inc., 711 F.2d 138 (9th Cir. 1983) . . . . . . . . . . . . . . . . . 3 Thornhill Publishing Co., 594 F.2d 730 (9th Cir. 1979) . . . . . 3 Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976) . . . . . . . . . . . . . . . . . 3 Trentacosta v. Frontier Pacific Aircraft, Industries Inc., 813 F.2d 1553 (9th Cir. 1987) . . . . . . . . 4 United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992), cert. denied, 113 S.Ct. 1273 (1993) . . . . . . . . . . . . . passim United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . 10, 13, 15 United States v. Gurrola-Garcia, 547 F.2d 1075 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990) . . . . . 9 United States v. Moller-Butcher, 560 F.Supp. 550 - ii - (D. Mass. 1983) . . . . . . . . . . . . . . . . . . . . . . . 8 Webster v. Doe, 486 U.S. 592 (1988) . . . . . . . . . . . . . . passim Webster Mining Council v. Watt, 643 F.2d 618 (9th Cir.), cert. denied, 454 U.S. 1031 (1981) . . . . . . . . . . . . . . 4 Zemel v. Rusk, 381 U.S. 1 (1964) . . . . . . . . . . . . . . . . 11 Statutes and Regulations 22 U.S.C.  2278(a)(1) . . . . . . . . . . . . . . . . . . . . 9 International Traffic in Arms Regulations, 22 C.F.R. Subchapter M, Parts 120 to 130 . . . . . . . . . . . 2 22 C.F.R.  120.10 . . . . . . . . . . . . . . . . . . . . . . 13 22 C.F.R.  120.10(a)(5) . . . . . . . . . . . . . . . . . . . 14 22 C.F.R.  120.9 . . . . . . . . . . . . . . . . . . . . . . . 13 22 C.F.R.  121.1 XIII(b) . . . . . . . . . . . . . . . . . . . 10 49 Fed. Reg. 47683 (Dec. 6, 1984) . . . . . . . . . . . . . . . 13, 14 56 Fed. Reg. 55457 (Oct. 28, 1991) . . . . . . . . . . . . . . . 14 - iii - INTRODUCTION Plaintiff's opposition to defendants' motion to dismiss ("Pl. Opp." and "Def. Mem.") makes two major arguments designed to avoid the preclusion of judicial review on the designation of commodities subject to export controls. First, plaintiff erroneously portrays the government's actions in this case as far removed from the designation of cryptographic software on the United States Munitions List ("USML") and, instead, casts the matter as a suppression of "pure speech." Pl. Opp. at 11. In the first sentence of his brief, plaintiff mischaracterizes the government's position by stating that "[t]he U.S. Government here claims it can restrain the publication of private ideas about science. . . ." Id. at 1. Plaintiff argues incorrectly that he must obtain advance permission from the government before he can "present his work to the public in any form," including in the classroom, or through a scientific journal, and that "[h]e cannot even stand on a street corner and talk about his ideas." Id. at 8. Second, plaintiff seeks to preclude the Court from considering the information defendants have put forward concerning what administrative actions were taken here and why. He asks the Court to strike defendants' submissions, rely solely on plaintiff's interpretation of the facts and regulations, presume jurisdiction, and allow plaintiff sweeping discovery -- all in the face of three Ninth Circuit decisions that strongly weigh against judicial review. Plaintiff states throughout his brief that he is not challenging the designation of cryptographic software on the USML, and concedes that the Court would have no jurisdiction to review such a claim. Each argument he makes -- on justiciability, and on the prior restraint and "ultra vires" claims -- hinges on his view that the government seeks to restrict his right to publish or speak about scientific ideas. Even if the Court limited itself to the administrative correspondence attached to the Complaint and to the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Subchapter M, Parts 120 to 130, any reasonable reading thereof indicates that the government designated plaintiff's cryptographic software as a defense article on the USML, and did not purport to bar plaintiff from publishing or discussing scientific ideas. However, the Court may also consider defendants' submissions, and plaintiff has failed to demonstrate a genuine issue of material fact that anything other than the designation of cryptographic software on the USML is at issue here. Because the government's commodity jurisdiction ("CJ") determinations are directed at controlling the conduct of exporting cryptographic software, and because the ITAR is not otherwise vague or overbroad, the plaintiff does not state a colorable constitutional claim that is subject to judicial review. ARGUMENT I. DEFENDANTS' COMMODITY JURISDICTION DETERMINATIONS CONCERN WHETHER PLAINTIFF MAY EXPORT SNUFFLE CRYPTOGRAPHIC SOFTWARE. Defendants' motion to dismiss for lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted, was based on the judicial construct set forth in United States v. Bozarov, 974 F.2d 1037, (9th Cir. 1992), cert. denied, 113 S.Ct. 1273 (1993) (citing Webster v. Doe, 486 U.S. 592 (1988)). This authority provides that for cases in which a statute precludes judicial review, and a plaintiff does not state a colorable constitutional claim, the matter must be dismissed for lack of subject matter jurisdiction. See, e.q., Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). Relying on Roberts v. Corrothers, 812 F.2d 1171 (9th Cir. 1987), plaintiff argues that "issues of jurisdiction and substance are intertwined" in this case, and, therefore, defendants' motion must be considered solely under Rule 12(b)(6) standards. See Plaintiff's Objection to Evidence ("Pl. Obj.") at 3. For this reason, plaintiff contends that the Court must strike defendants' declarations and, in lieu thereof, accept the plaintiff's version of the facts and regulations as pled. Id.[1] --- [1] Normally, when considering a motion under Rule 12(b)(1) for lack of jurisdiction, the district court is not restricted to the face of the pleadings, but may review any evidence to resolve factual disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989). --- The Court need not pause long over this issue. Even if Corrothers is applicable,[2] it does not require that materials extrinsic to the Complaint be stricken. As in Doe v. Schachter, 804 F.Supp. 53, 57 (N.D. Cal. 1992), the Court may first consider the matter under Rule 12(b)(6). In addition, if the Court considers the extraneous materials, and a genuine dispute of fact exists, it may convert the matter to a summary judgment motion under Rule 56. Id. at 64-65; Corrothers, 812 F.2d at 1177; Trentacosta v. Frontier Pacific Aircraft Industries, Inc., 813 F.2d 1553, 1558 (9th Cir. 1987). Each approach is considered below.[3] --- [2] The Corrothers line of authority is most apposite to cases where "jurisdictional facts" are intertwined with the consideration of the merits, and this normally involves questions of the definitional reach of a statute. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (jurisdiction under the FTCA turned on whether the plaintiff's claim had "accrued" under the law); Sun Valley Gasoline, Inc. v. Ernst Enterprises, Inc., 711 F.2d 138, 139-140 (9th Cir. 1983)(jurisdiction turned on whether a gas station was a "franchise" within the meaning of the PMPA); Timberlane Lumber Co. v. Bank of America, 549 F.2d 597, 601-602 (9th Cir. 1976) and Thornhill Publishing Co., 594 F.2d 730, 732-34 (9th Cir. 1979) (jurisdiction under Sherman Anti-Trust Act turns on whether restraint on trade affects interstate commerce); Black v. Payne, 591 F.2d 83, 86-878 [stet] (9th Cir. 1979), cert. denied 444 U.S. 867 (1979) (jurisdiction turned on whether the investment at issue fell within the statutory definition of a "security"). [3] Before leaving the point, while Bozarov and Webster reflect both Rule 12(b)(1) and (6), the question should remain a jurisdictional one. Webster's requirement that a constitutional claim be colorable raises a threshold to be met before judicial review is obtained. If Corrothers is applied to the Bozarov/Webster approach, i.e., the facts and merits are deemed to intertwine, then it may be easier to establish jurisdiction and get to an evidentiary stage, in the face of a statutory preclusion of review. As here, a plaintiff may argue that the more permissive Rule 12(b)(6) standard applies, that the allegations must be viewed as true, and that jurisdiction presumed. By artful pleading, a plaintiff may avoid the more rigorous standards under Rule 12(b)(1), under which extraneous evidence may be considered and a plaintiff bears the burden of demonstrating jurisdiction. --- A. The Commodity Jurisdiction Determinations, On Their Face, Concern the Exportation of Cryptographic Software. Under Rule 12(b)(6), the Court "must accept all material allegations in the complaint as true and construe them in the light most favorable to plaintiff." NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). However, the Court is not required to accept legal conclusions or opinions that may be alleged or drawn from the pleaded facts. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031 (1981). Plaintiff's theory that defendants seek to regulate his right to publish scientific ideas, or speak in a classroom or on a street corner, is based on his own legal conclusions and opinions as to what the CJ determinations and the ITAR mean, and are entitled to no deference. If the Court relied solely on the correspondence attached to the Complaint, it can determine the true nature of the administrative actions at issue -- to control the export of cryptographic software, snuffle 5.0. See Schachter, 804 F. Supp. at 57 (attachments to Complaint may be considered under Rule 12(b)(6)). First, plaintiff labeled his letter of June 30, 1992, to the State Department a "Commodity Jurisdiction Request for snuffle 5.0 software." See Exh. A1 to Complaint. He described the snuffle encryption system as "a zero-delay, private-key encryption system." Id. "'Zero-delay'" means that Snuffle can be used for interactive conversations: each character typed by one person can be encrypted, sent to the other person, and decrypted immediately." Id. The actual information submitted included a brief description of how snuffle works, along with source code -- the letters and symbols that reflect the snuffle algorithm in computer programming language, and instructions for programming snuffle. See Exh. D1. It strains reason to characterize this as a mere "paper" setting forth scientific ideas. On its face, that plaintiff submitted was not an exposition of cryptologic theories, but actual source code in computer programming language, along with detailed information on how to make it operational on a computer. This material, accompanied by a letter in which plaintiff states "I wish to export the software known as 'snuffle 5.0'," indicates that plaintiff sought a commodity jurisdiction request for snuffle 5.0 software.[4] --- [4] All five letters accompanying the second CJ request (CJ- 214-93) contained an identical sentence stating that the item at issue in the request "was originally designed to convert any one- way hash function into a zero-delay private-key encryption system." See Exh. D1 to Complaint. This also indicates that plaintiff sought a determination for cryptographic software. --- In addition, both of the State Department's CJ determinations are directed at snuffle software. The first CJ determination, on August 20, 1992, specifically references "Snuffle 5.0 Software." See Exh. B to Complaint. The second CJ determination, on October 5, 1993, indicates that items at issue "contain cryptographic source code for data encryption." Exh. E to Complaint. To interpret these determinations as meaning the plaintiff is barred from publishing ideas about the science of cryptology, or explaining them in a classroom or on a street corner, is unfounded. The Court should not be asked to strike down an important statutory and regulatory program on the basis of speculation. There can be no genuine issue that the factual foundation on which the colorability of plaintiff's claims must be assessed is the designation of his cryptographic software as a defense article on the USML. B. Plaintiff Cannot Demonstrate A Genuine Dispute of Material Fact Under Rule 56 Standards. Next, if the Court wishes to consider the materials submitted by defendants, it may do so pursuant to Fed. R. Civ. P. 56. Corrothers, 812 F.2d at 1177-78; Schachter, 804 F. Supp. at 64-65.[5] Indeed, plaintiff has acknowledged this by filing a Rule 56 (f) affidavit.[6] Under Rule 56, a party can demonstrate that it requires discovery to set forth "specific facts showing that there is a genuine issue for trial." See Fed. R. Civ. P. 56(e) and (f). However, as the Ninth Circuit has observed: [r]eferences in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f). Rule 56(f) requires affidavits setting forth the particular facts expected from the movant's discovery. Mission Indians v. American Management & Amusement, Inc., 824 F.2d 710, 716 (9th Cir. 1987); Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Plaintiff's Rule 56(f) affidavit fails to meet these requirements. --- [5] Other than for pro se plaintiffs, formal notice is not required where a court transforms a Rule 12(b)(6) motion to Rule 56; rather, notice otherwise exists where the party is fairly apprised that the court may look beyond the pleadings. See Garraux v. Pulley, 739 F.2d 437, 438-39 (9th Cir. 1984). [6] Thus, plaintiff has taken the conflicting positions of both objecting to evidence as extraneous to the Complaint and attempting to demonstrate a genuine issue of material fact under Rule 56. Plaintiff's actions under Rule 56 renders irrelevant his procedural objections to defendants' submissions. --- 1. There Is No Genuine Issue that the CJ Determinations Concerned Snuffle Cryptographic Software. The crux of plaintiff's factual dispute concerns whether the government sought to regulate the "non-code" items submitted with his cryptographic software. See Pl. Obj. at 4- 5. Since he concedes that the description of such software on the USML is not reviewable, see Pl. Opp. at 10, plaintiff seeks to show that pure speech is at issue. Otherwise, under O'Brien v. United States, 391 U.S. 367, 376 (1968), the government's action is directed at conduct that only incidentally affects speech, and plaintiff cannot state a colorable First Amendment claim. See Def. Mem. at 12-20. However, plaintiff does not set forth specific facts that genuinely controvert that the CJ determinations concerned the exportation of cryptographic software. The government's submissions do little more than reaffirm the conclusion that may be drawn from the administrative correspondence. See Giles Decl.  16-17. Hence, there is no genuine dispute on the issue.[7] --- [7] Plaintiff questions the veracity of the State Department's letter of June 29, 1995. See Pl. Obj. at 5; Tab 21 to Lowell Declaration. The government has set forth its position through sworn declarations, and plaintiff may not establish a genuine issue by asserting his doubts. Moreover, the genesis of the June 29 letter was not dubious. During the district court's "meet-and-confer" process, the parties discussed narrowing the claims at issue, and the State Department issued its letter. While paintiff may try to controvert its substance, the credibility of this action should not be questions -- particularly in view of plaintiff's failure to appeal the second CJ determination. --- 2. Plaintiff's Rule 56(f) Affidavit Fails to Identify Discovery Directed at Genuine Issues of Material Fact Plaintiff's Rule 56(f) affidavit is also deficient because it primarily refers to multiple topics of discovery that will not present a genuine issue of material fact. For example, plaintiff seeks to discover whether the normal scientific method includes the communication of computer code through on- line discussion groups, and whether source code has communicative value. See Declaration of Cindy A. Cohn  8(c)(d)(j)(m).[8] --- [8] This is information plaintiff could already present to support his claims. His Rule 56(f) declaration also indicates that he presently "can show" that the "speech of other individuals known to him has been restrained." Cohn Decl.  5 and  10(a)(iii)(3). Plaintiff cannot suggest he has knowledge of facts and then withhold them from defendants and the COurt. Plaintiff was also obligated to make an initial disclosure of evidence in support of his position. --- The Court can assume that the process of scientific development may include on-line discussions, and that cryptographic source codes have a theoretical communicative value. The question here is whether the government may nonetheless control the exportation of cryptographic source codes. As defendants have shown, such exports controls are unrelated to the suppression of expression. See Def. Mem. at 10-12. As shown further below, the academic community is able to engage in a detailed exchange of ideas on cryptology without simultaneously exporting cryptographic software. Hence, no genuine issue of material fact exists as to the scientific method. Plaintiff also would seek immaterial discovery on the foreign availability of cryptographic software, as well as on the government's interest in controlling the spread of such software. See Cohn Decl.  6; Pl. Obj. at 4; Pl. Opp. at 21, n.9. The Court may assume that the United States is not the sole source of crytographic software in the world. The question here, however, is whether it is unconstitutional under the First Amendment for the government to attempt to control the foreign availability of powerful cryptographic software in furtherance of its foreign signals intelligence mission. See Lowell Decl.  7; Giles Decl.  4. The availability of cryptographic software abroad may go to the merits of the policy, but is not material to whether such an export control is unconstitutional. Moreover, the designation of defense articles is based on the President's discretionary judgment that this would further world peace, and the security and foreign policy of the United States. 22 U.S.C.  2778(a)(1). This is precisely the type of judgment that is precluded from scrutiny. United States v. Mandel, 914 F.2d 1215, 1220 (9th Cir. 1990); see also United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978) (the federal government "undeniably possesses the power" to regulate international arms traffic). Plaintiff asserts that he is "not challenging the wisdom" of such policy judgments. Pl. Opp. at 30. For these reasons, the government's interests at stake do not present material facts in dispute.[9] --- [9] Plaintiff would also inquire into whether cryptographic software has civilian uses. Cohn Decl.  8(a). This fact is evident from the ITAR itself, which references several civilian uses of cryptography, such as for bank ATM machines, and also seeks to decontrol the export of "mass-market" encryption software through an expedited review process. See 22 C.F.R.  121.1 XIII(b). Several other discovery topics concern legal theories that plaintiff can argue now. See, e.g., Cohn Decl.  8(i)(k) (l)(o)(p)(q) and 10(a)(iii)(5)(7)(8) (ITAR terms arbitrary and capricious or exceed statutory authority). Plaintiff also would inquire into how defendants "administer and implement" the ITAR. See Cohn Decl.  8(e) and (f);  10(a)(i) (1)-(6_ and  10(a)(iii)(1) and  10(a)(v)(1)(2) and (vi). Plaintoff offers no evidence that the ITAR is not administered as defendants have demonstrated. See Def. Mem. at 20-24. --- II. PLAINTIFF CONCEDES THE COURT MAY NOT REVIEW THE DESIGNATION OF DEFENSE ARTICLES ON THE USML. Throughout his opposition, plaintiff concedes defendants' main point -- that the Court may not review the designation of a defense article on the USML, see Pl. Opp. at 10, 28, 35, 38 -- and his justiciability argument is built on the premise that pure scientific speech is at issue. In this way, plaintiff assumes the conclusion at the onset: colorable constitutional claims are justiciable. This reflects little more than the holding of Webster v. Doe. Defendants assume, arguendo, that a colorable claim was justiciable. See Def. Mem. at 8-9. Defendants recognize that courts have reviewed First Amendment claims involving foreign affairs. See, e.g., Zemel v. Rusk, 381 U.S. 1, 16-17 (1964). that is why, consistent with Bozarov, defendants focused their effort on explaining that plaintiff did not state colorable claims. See Def. Mem. at 10-24. For this reason, plaintiff's long exposition on justiciability and reviewability is beside the point. Rather, the initial consideration is that challenges to the designation of commodities as subject to export controls are unreviewable under the APA and non-justiciable, unless a colorable constitutional claim is stated. When the Court assesses the actions at issue and the legal claims made, it will see that the government's designation of plaintiff's encryption software as a defense article is directed at conduct and only incidentally affects speech. See Def. Mem. at 15. III. PLAINTIFF DOES NOT STATE A COLORABLE "PRIOR RESTRAINT" CLAIM SUBJECT TO JUDICIAL REVIEW. The only First Amendment issue for which plaintiff presents argument is the prior restraint claim. On this issue, the Court should first take judicial notice of the scientific journals and symposia concerning cryptology attached to the Second Declaration of Louis F. Giles. These materials discuss, in technical and mathematical detail, cryptographic algorithms for data encryption. This demonstrates that there is a substantial body of unfettered scientific exchanges concerning cryptologic ideas, including through international symposia.[10] It also shows that the dispute here concerns the exportation of actual cryptographic software, not academic discussion about its underlying theory. --- [10] The Court may note that the 1995 RSA Data Security Conference was held in Redwood City and that Dr. Ronald Rivest made a presentation on the RC5 encryption algorithm (Tab 4). The CRYPTO-90 Conference was held at UC Santa Barbara (Tab 5). --- Plaintiff argues that there is no rational distinction between the communication of ideas in English and by mathematical symbols in computer language. See Pl. Opp. at 21- 23. He makes the bald assertion that "software is speech . . . it is information" analogous to "notes on a sheet of music" or "step-by-step instructions for recipes in a cookbook." Id. at 23. In a some sense, software may reflect ideas and information. But unlike music or cooking recipes, source codes -- "mathematical ideas expressed in computer language" -- may be executed on a computer to perform the specific function of encryption data. Thus, plaintiff's contention that "there is no purpose to a distinction between such functioning software and a complete description of that software in English. "Pl. Opp. at 22, is specious. An English explanation of the theory of snuffle would inform the intellect. The source code would enable a person to actually encrypt data on a computer. While plaintiff's intention in exporting snuffle may be to communicate, Pl. Opp. at 18, the USML designation of cryptographic software does not seek to prevent the disclosure of "harmful ideas," id. at 11, but to control the foreign availability of a commodity that can function to encrypt data. Under the O'Brien line of authority, such a regulation does not abridge First Amendment freedoms. See Def. Mem. at 13-16.[11] --- [11] Plaintiff also argues that he did not submit functioning software for a CJ determination but a piece of "paper." Pl. Opp. at 22. This argument is disingenuous. The CJ requests described software the plaintiff wished to export. Plaintiff concedes that he wished to transmit the software electronically "to many places on the globe." Id. at 2, n.2. --- Finally, plaintiff argues that the CJ determinations pertained to the non-code technical data he submitted and, thus, that the ITAR technical data provisions, see 22 C.F.R.  120.10, constitute a system of prior restraint. The court of appeals in Edler disposed of a facial challenge to the technical data provisions as a prior restraint. Edler, 579 F.2d at 521. In an effort to revive the First Amendment theory rejected in Edler, plaintiff cites several opinions of the Department of Justice, Office of Legal Counsel. See Pl. Opp. at 17, 21-22; Declaration of Lee Tien. But the OLC analysis is fully consistent with Edler.[12] --- [12] See Tien Declaration, 1981 OLC opinion at 60053 (in Edler context, government has a compelling interest in regulating conduct of technical advice); 1984 OLC opinion at 60008 (based on Edler, technical data provisions of the ITAR could be constitutionally applied to persons or firms who disseminated technical data in assisting foreign enterprises in development of sensitive technology). --- Moreover, a few months after the last OLC opinion, the State Department indicated that its practice in controlling technical data would be consistent with Edler. 49 Fed. Reg. 47683 (Dec. 6, 1984) (Tab 1A to the Lowell Declaration). In this case, the State Department has advised plaintiff that if his objective in exporting technical data is to provide technical assistance, e.g., "in order to assist a foreign person or enterprise in obtaining or developing cryptographic software," a license would be required. See Tab 21 to Lowell Declaration; Edler, 479 F.2d at 521; see, e.g., 22 C.F.R.  120.9 (definition of "defense service"). Plaintiff's discussion of Edler misses this key point and, as a result, his claim that the ITAR was utilized as a prior restraint against his technical data, or his right to even discuss his ideas, is unfounded. Also, plaintiff is wrong that the ITAR was not amended after the OLC analysis. Pl. Opp. at 17. While the definitions upheld in Edler are conceptually similar to the current ITAR, see Def. Mem. at 21, n.1, the State Department amended the ITAR' provisions on technical data to clarify their reach. In 1984, after the OLC opinions, the Department added the definition of "public domain" at then-section 120.18, and also provided in then-section 125.1 that information in the public domain is not subject to export controls. See 49 Fed. Reg. 47682 (Dec. 6, 1984). In October 1991, the Department again amended the ITAR to exempt general scientific information from definition of technical data. See 56 Fed. Reg. 55457 (Oct. 28, 1991). Thus, the current ITAR definition of technical data expressly excludes information in the public domain, as well as "information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges, and universities." 22 C.F.R.  120.10(a)(5). IV. DEFENDANTS' ACTIONS WERE NOT "ULTRA VIRES" Finally, plaintiff argues that defendants, in "promulgating and applying the ITAR to plaintiff," exceeded delegated authority because "Congress never intended the [Arms Export Control Act] to be applied to the publication of academic or scholarly publication of scientific and technical information." Pl. Opp. at 25. Assuming, arguendo, there is jurisdiction to review this claim,[13] the court in Edler pointed out that Congress did intend to permit the regulation of technical information to some extent, which the court construed to be in connection with "the conduct of assisting a foreign enterprise to obtain military equipment and related technical expertise." Edler, 579 F.2d at 521. Plaintiff's claim that the ITAR was applied to him otherwise is unsupported. --- [13] Since the AECA delegated authority to the President, plaintiff is wrong that this non-constitutional claim is reviewable. Dalton v. Specter, 114 S.Ct. 1719, 1725-27 (1994). Also, where judicial review of an action is precluded by statute, it is also precluded under the APA, see 5 U.S.C.  701(a)(1), and this extends to the claim brought under 5 U.S.C.  706(2)(C) that an action was beyond statutory authority. --- With respect to cryptographic software, the Ninth Circuit has consistently recognized the broad grant of authority given to the President in designating commodities as subject to export control. See Bozarov, 974 F.2d at 1044 (citing United States v. Gurrola-Garcia, 547 F.2d 1075, 1077-78 (9th Cir. 1976). Accordingly, the President's authority under the AECA to designate crytographic software as a defense article does not present a statutory "ultra vires" violation, nor state a colorable constitutional claim. CONCLUSION For the foregoing reasons, plaintiff's complaint should be dismissed for lack of subject matter jurisdiction. Respectfully submitted, FRANK W. HUNTER 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) 556-6181 (signed: Anthony J Coppolino) _________________________________ VINCENT M. GARVEY ANTHONY J. COPPOLINO Department of Justice 901 E Street, Room 1020 Washington, D.C. 20530 Tel. (Voice): (202) 514-4782 Fax: (202) 616-8470 or 616-8460 Attorneys for Defendants Dated: October 5, 1995