CINDY A. COHN, ESQ.; SBN 145997 McGLASHAN & SARRAIL Professional Corporation 177 Bovet Road, Sixth Floor San Mateo, CA 94402 Tel: (415) 341-2585 Fax: (415) 341-1395 LEE TIEN, ESQ.; SBN 148216 1452 Curtis Street Berkeley, CA 94702 Tel: (510) 525-0817 ROBERT CORN-REVERE, ESQ. JEREMEY B. MILLER, ESQ. JULIA F. KOGAN, ESQ. Hogan & Hartson, L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20008 Tel: (202) 637-5000 Attorneys for Plaintiff Daniel J. Bernstein IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN ) ) C 95-00582 MHP Plaintiff, ) ) DECLARATION OF v. ) DANIEL J. BERNSTEIN ) IN SUPPORT OF PLAINTIFF'S ) MOTION FOR PRELIMINARY UNITED STATES DEPARTMENT OF ) INJUNCTION STATE et al., ) ) Date: November 8, 1996 Defendants ) Time: 10:30 ) Judge: Hon Marilyn Hall Patel _________________________________________) I, Daniel J. Bernstein, declare: 1. I am the Plaintiff in the above-entitled action. I currently reside in Chicago, Illinois. The facts stated herein are known to me of my own personal knowledge; if called upon to testify thereon, I could and would competently do so. To assist the Court, this Declaration includes some of the facts which I have stated previously in my Declaration in Support of Plaintiff's Motion for Partial Summary Judgment and Summary Adjudication of Issues. 2. I am currently a Research Assistant Professor in the Department of Mathematics, Statistics, and Computer Science at the University of Illinois at Chicago. 3. I have been asked by my employer, the University of Illinois at Chicago, to teach an undergraduate course in the science of cryptography during the Spring 1997 semester which begins in January, 1997. Teaching Goals 4. Cryptography is an applied subject. The fundamental goal of my course is for the students to understand how to use encryption to protect information. 5. To understand how to use encryption, the students must become familiar with the most important published work in cryptography. I will show the students several published cryptographic algorithms, including DES and RSA, and several published implementations of cryptographic algorithms, including PGP. 6. When I give an algorithm to my students, I may express it in English, in mathematical formulas, or in source code. This choice is based on many factors, including the type of lesson being demonstrated, the precision with which the algorithm needs to be expressed, and the use which will be made of it. I expect my students to evaluate the same factors when they express algorithms. 7. Modern encryption methods are intolerably slow when performed by hand. My students must learn how to enlist the help of a computer: selecting algorithms that can be performed efficiently by computers, expressing those algorithms in languages that computers can understand, and making the results work in practice. 8. I will not limit my teaching to ideas that are "commonly taught"; many commonly taught ideas in cryptography are wrong. For example, it is widely believed that public-key cryptography is slow, even with the help of a computer. I have written an extremely fast encryption package, dh227, that dispels this myth. I will give dh227 to my students and show them how it dodges the previous speed barrier. Inside dh227 is SEOC, a successor to Snuffle; I will analyze both Snuffle and SEOC and explain the changes I made in Snuffle's design. To my knowledge, none of this material has been taught before. 9. I will not limit my teaching to previously published work. For example, dh227 has not yet been published. I have kept it secret out of fear of the ITAR Scheme. Course Materials Distribution 10. I plan to put my course materials and homework assignments, including Snuffle 5.0, on the Internet at the University of Illinois World Wide Web site for convenient access by my students. I have found that distribution of source code and related course materials through a central electronic location such as an Internet site is easier, more efficient and less costly than distributing course materials on paper or through handing out of computer disks. 11. The University of Illinois' World Wide Web site is not limited to students. Like the University library, it is open to any person. After I put my course materials onto the site, they will be available over the Internet to any person who wishes to see them, as are the handouts from a graduate mathematics course that I taught in the Fall, 1995 semester. Attached hereto as Exhibit A is a true and correct copy of one of the World Wide Web pages from my Fall 1995 course. Teaching Methodology 12. I firmly believe that understanding comes from examples. It is very difficult to give realistic examples of cryptography on a blackboard. I will expect my students to obtain cryptographic software--including source code, instructions for using the code, and descriptions of the algorithms involved--from the class Internet site, and to use this software to see how cryptographic theory translates into practice. 13. I have not yet finalized my course outline. However, as part of the process described above, I presently expect to have students who will download, compile and use the source code for PGP, DES, Snuffle 5.0, my new software called dh227 and others. I anticipate that some of the source code, algorithms and technical information I will ask them to use will be already-published materials and some will not. 14. I will allow students to obtain partial course credit by writing their own cryptographic software. Scientific Exchange 15. I intend to discuss course materials with my peers and colleagues around the world to obtain feedback that may help my students. 16. In order to prepare for my courses, I often consult informally with other professors and researchers on the topic to be taught, many of whom are not US persons under the ITAR Scheme. For example, I would like to immediately discuss dh227 with Peter Gutmann. Mr. Gutmann, who I believe is a citizen and resident of New Zealand, is an active cryptographer with extensive experience in practical cryptography, especially the kinds of methods I have used in dh227. Teaching Materials and Outline 17. I've already begun to assemble the appropriate materials, but I do not expect to be finished with course preparations before January, 1997. Furthermore, I expect to adapt my course plans during the semester to match student interests. Thus, it is impossible for me to state definitively what I will teach. Foreign Students 18. I do not check the citizenship of my students, nor do I take attendance in my classes. 19. From my experience at the university, I expect that some of my students will be foreign persons as defined in the ITAR Scheme. I do not discriminate against noncitizens in my classroom. 20. I also expect that some students will attend my lectures without registering for the course. Class lists will not be finalized until after the course begins. 21. I also anticipate that some of my students will take their course notes, course materials, software, and other course-related items out of the country, and that some will discuss them with foreign persons. Fear of Prosecution 22. Given my understanding of the terms and text of the ITAR and my knowledge of how it has been applied to me and others by Defendants, I am fearful that I will be criminally prosecuted or subject to civil penalties for the acts described above which I plan to undertake as part of preparation for and teaching of this cryptography course. 23. At this point, if this injunction is not granted, I am not sure that I will still teach the course. I believe my career will suffer adversely if I decline to teach this course. 24. If the injunction is not granted and I decide to risk prosecution to teach this course, I will certainly modify the course. For example, I will probably not teach the full range of methodologies I now plan to and will restrict the readings, assignments and projects in order to minimize the students' and my own risk of prosecution. I believe the course will suffer as a result. 25. On July 3, 1996, my attorney sent a letter to Defendants' counsel seeking a stipulation to ensure that neither I nor my students would be prosecuted or subject to civil penalties as a result of my teaching and scientific exchange activities. A true and correct copy of that letter is attached hereto as Exhibit B. 26. On July 25, 1996, Mr. Lowell of the State Department responded to my attorney's letter. Mr. Lowell did not, however, respond to our request for a stipulation. A true and correct copy of that letter is attached hereto as Exhibit C. I declare under penalty of perjury that the foregoing is true and correct and that this Declaration was signed in Chicago, Illinois. Date: Daniel J. Bernstein