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. JULIA F. KOGAN, ESQ. JEREMY B. MILLER, ESQ. Hogan & Hartson, L.L.P. 555 Thirteenth Street, NW Washington, DC 20008 Tel: (202) 637-5600 Attorneys for Plaintiff Daniel J. Bernstein UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) Case No. C-95-0582 MHP DANIEL J. BERNSTEIN, ) ) PLAINTIFF'S MEMORANDUM OF Plaintiff ) POINTS AND AUTHORITIES IN ) SUPPORT OF MOTION FOR v. ) PRELIMINARY INJUNCTION ) ) UNITED STATES DEPARTMENT OF ) STATE, et al., ) Date: November 8, 1996 ) Time: 10:30 a.m. Defendants. ) Judge: Hon. Marilyn Hall Patel ) TABLE OF CONTENTS Page I. BACKGROUND 3 A. The Stipulation Request 5 B. The Government's Refusal to Stipulate That It Will Not Prosecute Prof. Bernstein 6 II. THIS COURT SHOULD ENJOIN ANY PROSECUTION OF PROFESSOR BERNSTEIN ARISING FROM HIS TEACHING ACTIVITIES 7 A. The Overly Broad and Vague Reach of the ITAR and its Exemptions, Coupled With the Government's Refusal to Stipulate That it Will Not Prosecute, Subjects Prof. Bernstein to Irreparable Injury in the Exercise of His First Amendment Freedoms 8 1. The Scope of the ITAR and the Vagueness of its Exemptions Reinforce the Threat of Prosecution 9 a) Defense Articles, Software and Defense Services 9 b) Technical Data Restrictions and Exemptions 10 2. Administration of the ITAR Scheme and Informal Assurances by the Defendants Reinforce the Threat of Prosecution 12 3. The Government's Treatment of Other Researchers in the Field of Cryptography Reinforces the Threat of Prosecution 15 4. The Government's Treatment of Academic Speech in General Reinforces the Threat of Prosecution 16 B. The Likelihood for Success on the Merits is Extremely Strong Due to ITAR's Unduly Restrictive Regulatory Scheme and Defendants' Excessive Discretion. 18 1. The ITAR Scheme Imposes a Prior Restraint 18 2. The ITAR Scheme Vests Defendants With Excessive Discretion 20 C. The Balance of Hardships Clearly Favors the Plaintiff, and Granting the Preliminary Injunction Would Serve the Public Interest. 22 1. Balance of Hardships 22 2. The Public Interest 24 III. CONCLUSION 2 TABLE OF AUTHORITIES CASES ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) 22, 23 ACLU v. Reno, Civil Action No. 96-963 (E.D. Pa. May 15, 1996) 22 Adultworld Bookstore v. City of Fresno, 758 F.2d 1348 (9th Cir. 1985) 7 Altmann v. Television Signal Corp., 849 F.Supp. 741 (N.D. Cal. 1993) 7 Arnett v. Kennedy, 416 U.S. 134 (1974) 2 Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d 1572 (Fed. Cir. 1990) 7 Baggett v. Bullitt, 377 U.S. 360 (1964) 6, 8, 19, 22 Bantam Books v. Sullivan, 372 U.S. 58 (1963) 19 Bernstein v. Department of State, 922 F.Supp. 1426 (N.D. Cal. 1996) 6, 7, 12, 19 Big Country Foods, Inv. v. Board of Education, 868 F.2d 1085 (9th Cir. 1989) 8 Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, 482 U.S. 569 (1987) 21 Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) 23 City of Houston v. Hill, 482 U.S. 451 (1987) 18, 21 City of Lakewood v. Plain Dealer Publishing Co. 486 U.S. 750 (1988) 19 Council for Periodical Distributors Assn's v. Evans, 642 F. Supp. 552 (M.D. Ala. 1986), aff'd on other grounds, 827 F.2d 1483 (11th Cir. 1987). 19 Elrod v. Burns, 427 U.S. 347 (1976) 7 FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) 18 Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947) 11 Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992) 19 Freedman v. Maryland, 380 U.S. 51 (1965) 17, 18, 19 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) 19 Gaudiya Vaishnava Society v. City and County of San Francisco 952 F.2d 1059 (9th Cir. 1990) 19 Grossman v. City of Portland, 33 F.3d at 1205 n.9 17, 18 Home Bldg. & Loan Assn. v. Blaisdell 290 U.S. 398 (1934) 23 Hooters, Inc. v. City of Texarkana, 897 F. Supp. 946 (E.D. Texas 1995) 22 Keyishian v. Board of Regents 385 U.S. (1966) 17 Kolender v. Lawson, 461 U.S. 352 (1983) 19 Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197 (9th Cir. 1980) 7 Near v. Minnesota, 283 U.S. 697 (1931) 21 Nebraska Press Ass'n v. Stewart 427 U.S. 539 (1976) 24 New York Times Co. v. United States 403 U.S. (1971) 17, 24 Niemotko v. Maryland 340 U.S. 268 (1951) 19 Nordyke v. County of Santa Clara, __ F. Supp. ___, 65 USLW 2062, 1996 WL 390328 (N.D. Cal. 1996) 22, 24 Quincy Cable TV, Inc. v. FCC 768 F.2d 1434 (D.C. Cir. 1985) 23 Regents of the University of California v. Bakke 438 U.S. 265 (1977) 17 San Diego Committee Against Registration and the Draft v. The Governing Board of the Grossmont Union High School District 790 F.2d 1471 (9th Cir. 1986) 7 Schurz Communications, Inc. v. FCC, 982 F.2d. 1043 (7th Cir. 1992) 8 State of Alaska v. Native Village of Venetia, 856 F.2d 1384 (9th Cir. 1988) 6 Steffel v. Thompson, 415 U.S. 452 (1974) 6 Sweezy v. New Hampshire, 354 U.S. 234 (1957) 1, 17, 25 Topanga Press, Inc. v. City of Los Angeles 989 F.2d 1524 (9th Cir. 1993) 7 Turner Broadcasting System v. FCC, 114 S. Ct. 2445 (1994). 23 United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978) 13, 16 United States v. Robel 389 U.S. 258 (1967) 23 Vance v. Universal Amustment Co., 445 U.S. 308 (1980) 17 Viacom International, Inc. v. FCC 828 F.Supp 741 (N.D. Cal. 1993) 7 STATUTES 22 C.F.R. 120.9 1 22 C.F.R. 120.9 (a)(2) 13 22 C.F.R. 120.10 (a)(4) 1 22 C.F.R. 121.1 1 22 C.F.R. 127.1 (a)(1) 1 22 C.F.R. 120.10 (a)(5) 2 22.C.F.R. 120.11 2 22 C.F.R. 121.8(f). 8 22 C.F.R. 120.17(a)(2), (a)(4), (a)(5) 12 22 C.F.R. 120.11(a)(4) 13 22 U.S.C. 2778 (h) 20 22 U.S.C. 2778 3 22 U.S.C. 2778 (b)(2) 1 OTHER AUTHORITIES Allen M. Shinn, Jr., The First Amendment and the Export Laws: Free Speech on Scientific and Technical Matters, 58 George Washington Law Review 368 (January 1990) 17 M. Christina Ramirez, The Balance of Interests Between National Security Controls and First Amendment Interests in Academic Freedom, 13 J.C. & U.L. 179 (Fall 1986) 17 Report of National Research Council (May 30, 1996) 10, 11, 25 Statement to the House Committee on the Judiciary, Hearing on H.R. 3011 "Security and Freedom Through Encryption Act," by William P. Crowell, Deputy Director, National Security Agency (Sept. 25, 1996) 24 Satement of Vice Admiral J. M. McConnell, Hearing on The Administration's Clipper Chip Key Escrow Encryption Program, S. Hrg. 103-1067, 103d Cong., 2d Sess. (May 3, 1994) at 155 24 Testimony of the Hon. Bob Goodlatte to the House Committee on the Judiciary, Hearing on H.R. 3011 "Security and Freedom Through Encryption Act" (Sept. 25, 1996) 23 The First Amendment protects as "self-evident" the "right to lecture and . . . to associate with others for a common [educational] purpose." Sweezy v. New Hampshire, 354 U.S. 234, 249-250 (1957). Restrictions upon free academic inquiry "impose [a] strait jacket upon the intellectual leaders in our colleges and universities [that] would imperil the future of our Nation." Id. at 250. Despite these bedrock constitutional principles, the Arms Export Control Act ("AECA") and the International Trade in Arms Regulations ("ITAR") act as a prior restraint on academic speech in the field of cryptography. These restrictions and the way in which they are administered by the Defendants impose a powerful chilling effect on the Plaintiff, Professor Daniel J. Bernstein ("Prof. Bernstein"), who has been assigned by the University of Illinois at Chicago (the "University") to teach the theory and practice of cryptography. Accordingly, the Plaintiff is seeking preliminary injunctive relief to protect his constitutional rights and those of his students as he prepares for and teaches his course. The AECA and ITAR require a "license or written approval" before an individual may "export or attempt to export" any "defense article or technical data or to furnish any defense service." 22 U.S.C. 2778(b)(2); 22 C.F.R. 127.1(a)(1). ITAR's redundant and overlapping terms include cryptographic software (including its "functional design, logic flow, [and] algorithms") as a defense article, and extend to such activities as furnishing a foreign person, "whether in the United States or abroad," with technical data or with assistance in the "design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation . . . processing or use of defense articles" as a defense service. See 22 C.F.R. 120.9, 120.10(a)(4), 121.1, Category XIII. These broad restrictions go to the heart of Plaintiff's activities as a teacher and scholar, and on their face establish a prior restraint. Defendants assert that "Dr. Bernstein has no reason to fear prosecution under the AECA and ITAR merely as a result of teaching a class on cryptography," but only so long as he does not (1) "intentionally provide technical assistance to a foreign person for the purpose of assisting them in obtaining or using a defense article," or (2) permit international "distribution [of his software] via the Internet." See Defendants' letter dated July 25, 1996, Declaration of Daniel Bernstein ("Bernstein Decl."), Exhibit C, attached hereto ("Defendants' July 25, 1996 letter"). Thus, teaching a foreign student how to use cryptographic software could violate proviso (1), while posting software on the University website for student access could violate proviso (2). Moreover, the government's informal assurance is based entirely on exemptions to the ITAR definition of "technical data," 22 C.F.R. 120.10(a)(5); 120.11, and provide no protection whatsoever from prosecution under the ITAR provisions relating to defense articles and defense services. Defendants have exploited the vagueness and redundancy of the regulatory terms to compel prior review and to chill academic speech. With respect to the "technical data" exemptions, the government has provided no clear criteria for what information is in the "public domain" (and how it attains that status), or what constitutes "general . . . principles commonly taught in schools, colleges and universities." Moreover, the government has made clear that teaching activities can be subject to prosecution if undertaken with improper "intent." Finally, whenever there is doubt about how the ITAR scheme applies -- as there is in every case -- Defendants informally advise researchers like Prof. Bernstein to restrict their speech and urge them to submit to formal review procedures. In short, the ITAR scheme hangs like a sword of Damocles over Prof. Bernstein's plainly legitimate teaching activities. Perhaps the government may be taken at its word, that it has no present intention to prosecute. But as Justice Marshall has pointed out, "the value of a sword of Damocles is that it hangs -- not that it drops." Arnett v. Kennedy, 416 U.S. 134, 231, (1974) (Marshall, J., dissenting). This Court should enjoin enforcement of the ITAR scheme as it relates to Prof. Bernstein's teaching activities because without an injunction Prof. Bernstein will be irreparably injured, and because Professor Bernstein has presented a strong First Amendment claim. BACKGROUND Beginning in January, 1997, Prof. Bernstein will teach a semester-long undergraduate level course in the science of cryptography in the Department of Mathematics, Statistics, and Computer Science at the University of Illinois at Chicago, a part of the public education system of the State of Illinois. Bernstein Decl. =B6=B6 2-3; Declaration of John Wanat ("Wanat Decl.") =B6 2, attached hereto. In 1995, approximately six percent of the University's approximately 24,000-person student body attended the University on student Visas. Declaration of Julie Smith ("Smith Decl.") at =B6 6, attached hereto. The University places no limits, aside from the prerequisites applied to all students, on which classes foreign students may take. Wanat Decl. at =B6 4. Accordingly, it is quite likely that some of Prof. Bernstein's students will be "foreign persons" as defined by the ITAR scheme. Bernstein Decl. at =B6=B6 16, 18-21. Cryptography is an applied subject, and the fundamental goal of Plaintiff's course is for the students to understand how to use encryption to protect information. Bernstein Decl. at =B6 4. To do this, the students must become familiar with the most important published work in cryptography. Consequently, the Plaintiff plans to provide students with published cryptographic algorithms, including DES and RSA, and published implementations of cryptographic algorithms, including PGP. Id. at =B6 5. The decision regarding whether to express algorithms in English, mathematical formulas, or source code is determined by educational need, such as the nature of the lesson, the precision with which the algorithm needs to be expressed, and the use to which it will be put. Id. at =B6 6. Such cryptographic concepts and algorithms are essential to understanding the material in this field of study. Declaration of Michael Paul Johnson ("Johnson Decl.") at 3; Andrew W. Appel ("Appel Decl.") at 5; Matt Blaze ("Blaze Decl.") at 4; Bruce Schneier ("Schneier Decl.") at 6-7. Additionally, it is essential to use computers in teaching cryptography, and in expressing algorithms in languages that computers can understand. Bernstein Decl. at =B6 7. For educational purposes, Plaintiff does not intend to limit his course to ideas that are "commonly taught," since he believes that many ideas that are commonly taught in cryptography are wrong. An example of this is the notion that public-key cryptography is slow. Prof. Bernstein has written a new encryption package (dh227) to demonstrate that this "commonly taught" concept is a myth, and plans to distribute the package to his students to instruct them on how such myths are disproved. The new program, based on the design of Snuffle, has not previously been taught or published. Prof. Bernstein never released dh227 because of fear of the ITAR scheme. Bernstein Decl. at =B6=B6 8-9. In the normal course of his preparation and in furtherance of his academic pursuits, Prof. Bernstein intends to discuss course materials with his peers and colleagues around the world to obtain feedback that may help his students. The exchange of source code, as well as software, is typically part of the academic dialog in this field, and is vital to test the security of any given cryptographic algorithm or protocol. See, e.g., Blaze Decl. at 2. Additionally, communication of such information via the Internet has become a vital to the exchange of scientific information. Bishop Decl. at 3-4. One of the individuals Prof. Bernstein plans to consult is Mr. Peter Gutmann, who Prof. Bernstein believes is a resident of New Zealand. Mr. Gutmann has extensive experience in practical cryptography. Bernstein Decl. at =B6 16. Plaintiff intends to put his 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 his students. Other professors at the University make similar use of this site, which is not limited to University students. Like the University library, it is open to any person. / Any materials posted onto the site will be available to any Internet browser who wishes to access them, as are the handouts from a recent graduate mathematics course taught by the Plaintiff. Bernstein Decl. at =B6 11. In addition, it is foreseeable that Plaintiff's students may seek to take their course notes, course materials, software and other items related to Plaintiff's course out of the country or to discuss them with foreign persons. Neither the Plaintiff nor the University has an effective way of knowing whether foreign persons are obtaining course materials on cryptography, or preventing them from doing so. Class lists are administered by the University, and are not finalized until after the start of the semester. The Plaintiff also anticipates that some students and, possibly, non-students will attend his lectures without registering for the course. The Plaintiff does not check on the citizenship status of his students, nor does he take class attendance. The University has no policy to control access to particular classes by foreign students, nor does it believe that any such system could be implemented or administered. Wanat Decl. at =B6=B6 4-12. The Stipulation Request After several informal contacts, including a discussion at the Case Management Conference, counsel for the Plaintiff wrote to the Government on July 3, 1996, seeking to reach a stipulation for a preliminary injunction regarding potential prosecutions resulting from Prof. Bernstein's cryptography course. See Plaintiffs' July 3, 1996 letter, Bernstein Decl., Exhibit B ("Plaintiff's July 3, 1996 letter"). After listing facts to be taken into account by the stipulation and explaining that the criteria for issuing such injunctive relief had been met, the letter then proposed certain minimum assurances from the Government regarding prosecution and licensing. Prof. Bernstein requested that the parties agree to the following stipulation terms, to be filed with this Court: (1) Defendants will not seek to prosecute Plaintiff, plaintiff's students or any person who receives technical data or cryptographic software as part of plaintiffs activities in teaching or in scientific exchanges during the Spring, 1997 semester; (2) No person who conveys or receives cryptographic information in connection with the course is required to seek a license or other approval, or to fulfill registration, reporting, or other requirements of the ITAR scheme; and (3) Any person affected by a breach of the stipulation shall have immediate access to this court for review on an expedited basis. / The Government's Refusal to Stipulate That It Will Not Prosecute Prof. Bernstein In a letter from William J. Lowell of the Department of State, the government declined to address directly, much less agree to, the proposed stipulation. See Bernstein Decl., Exhibit C. That letter simply asserts that Prof. Bernstein should not fear prosecution under AECA or ITAR for teaching a cryptography class because ITAR's definition of technical data does not include information published in the public domain and commonly taught principles, and because "the ITAR does not regulate the domestic distribution of cryptographic software including in an academic setting." Id. at 4. The letter added that "ITAR does not treat academic exchanges of information in the United States as an export of technical data or a defense service." Id. In the same letter, however, Director Lowell undercut his own assurances. He warned that "this does not mean that Prof. Bernstein (or any other individual) may freely export encryption software outside of the United States, or intentionally provide technical assistance to a foreign person for the purpose of assisting them in obtaining or using a defense article." Id. (emphasis added). The Lowell Letter also asserted that proposed communication on the World Wide Web, even in the context of an academic exchange, could constitute an export, and stated that ''in order to avoid its exportation from the United States, Prof. Bernstein should take reasonable steps to limit its distribution via the Internet within the United States and Canada." Id. However, the letter provided no guidance on what steps the Defendants would consider "reasonable." Nor did the letter address any of the other issues raised by Plaintiff's counsel's letter, including the possible prosecution of Prof. Bernstein or his students, or whether the Government might agree to any stipulation. Furthermore, the letter fails to resolve the parties' disagreement as to the meaning of key terms employed in the ITAR scheme. See Bernstein, 922 F.Supp. at 1429 n.4. THIS COURT SHOULD ENJOIN ANY PROSECUTION OF PROFESSOR BERNSTEIN ARISING FROM HIS TEACHING ACTIVITIES Because of the ITAR scheme, Prof. Bernstein must either limit his speech or risk the imposition of criminal and civil penalties. This is a choice that the constitution does not permit the government to impose. Baggett v. Bullitt, 377 U.S. 360, 372 (1964). Nor must an individual such as Prof. Bernstein await "actual arrest or prosecution" before he may obtain judicial intervention to block governmental rules or activities that restrict his ability to speak freely. Steffel v. Thompson, 415 U.S. 452, 459 (1974). Because such governmentally-imposed inhibitions on First Amendment activities "for even minimal periods of time, unquestionably constitute[ ] irreparable injury," Elrod v. Burns, 427 U.S. 347, 373 (1976), this Court should enjoin enforcement of the AECA and ITAR arising from Prof. Bernstein's teaching activities. An injunction should be granted where Plaintiff demonstrates probable success on the merits and a possibility of irreparable injury. State of Alaska v. Native Village of Venetia, 856 F.2d 1384, 1389 (9th Cir. 1988). Alternatively, to the extent there is a greater showing of irreparable injury, the less the need to demonstrate likelihood of success on the merits. Id; Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d 1572, 1575 (Fed. Cir. 1990). See Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200-01 (9th Cir. 1980). / In First Amendment cases, the Ninth Circuit has granted injunctive relief where the plaintiff raises sufficiently serious questions going to the merits to make the case a fair ground for litigation and the balance of hardship tips decidedly in plaintiff's favor. / Irreparable injury is presumed where the plaintiff establishes a colorable First Amendment claim. / Under any of these formulations, Plaintiff's request for a preliminary injunction should be granted. The Overly Broad and Vague Reach of the ITAR and its Exemptions, Coupled With the Government's Refusal to Stipulate That it Will Not Prosecute, Subjects Prof. Bernstein to Irreparable Injury in the Exercise of His First Amendment Freedoms The government has declined to stipulate that it will not prosecute Prof. Bernstein because -- it asserts -- the exemptions for teaching activities and public domain publications are "obvious." Def. Opp. to Plaintiff's Motion for Summary Judgment and in Further Support of Def. Motion for Summary Judgment ("Def. Opp.") at 25. Indeed, Defendants have described the regulatory terms contained in ITAR as "quite understandable," even to "non-academics of ordinary intelligence." Id. at 22-23. The government has even claimed that Prof. Bernstein's understanding of the exemptions "is by far the most un-reasonable interpretation" that "people of ordinary intelligence are least likely to assume is the case." Id. at 25 (emphasis in original). It has therefore characterized Prof. Bernstein's concerns as mere "theoretical speculation as to what the ITAR could conceivably encompass." Id. at 8. But it is the government's burden to demonstrate where "fanciful possibility end[s] and intended coverage begin[s]," particularly when freedom of academic speech is at stake. Baggett, 377 U.S. at 373. Defendants have failed to meet this burden. Instead, as Plaintiff has demonstrated in his Mem. of Points and Authorities in Support of Motion for Partial Summary Judgment ("Plaintiff's Motion"), what Defendants believe is "obvious" is instead "unexplained" and "mysterious" where, as here, the key terms are "never defined." Schurz Communications, Inc. v. FCC, 982 F.2d. 1043, 1054-1055 (7th Cir. 1992). To assess whether Plaintiff's fear of prosecution is reasonable or not, perhaps a better question is this: Upon what authoritative source can Prof. Bernstein rely for assurance that he will not be prosecuted for teaching a course in cryptography as he has proposed? The government can identify none. The Scope of the ITAR and the Vagueness of its Exemptions Reinforce the Threat of Prosecution Defense Articles, Software and Defense Services It is not self-evident, as the government asserts, that teaching a course in cryptography is exempt from the ITAR. As Plaintiff has demonstrated, the key terms of the ITAR scheme are vague and refer to one another in a circular fashion. See Plaintiff's Motion at 6-8. Moreover, Defendants' much-touted exemptions apply only to technical data and give no protection to the use of cryptographic "software" in teaching, since it is defined as a "defense article." Thus, the use of computer code as a teaching tool is unprotected. To make matters worse, the definition of "software" as a defense article is not limited to computer code, but includes "functional design logic flow, algorithms, application programs, operating systems and support software for design, implementation, test, operation, diagnosis and repair." 22 C.F.R. 121.8(f). This definition extends to the very building blocks of many mathematical concepts and scientific ideas, including the subjects about which Prof. Bernstein plans to publish and teach. Plaintiff's Motion at 6. Although Defendants assert that "there are good reasons why the term 'algorithm' is included in the definition of software," they do not deny that the regulatory term covers mathematical concepts. Def. Opp. at 23. The government merely states that the regulation thus far "has not been applied to extend to algorithms merely set forth in academic journals or textbooks." Id. (emphasis added). But there is no reason why it may not be so applied under the government's theory of the law. Quite to the contrary, Defendants have asserted that they have good reason to do so. / It is impossible for the government intelligibly to distinguish the ITAR's definitions of defense articles, software, defense services and technical data from Prof. Bernstein's course objectives. Indeed, the entire purpose of the course is to teach students to understand, use, write and break cryptographic programs. This necessarily includes access to algorithms, source code, and software for the most prominent cryptographic programs currently available. In the academic setting, this is known as "education." Technical Data Restrictions and Exemptions The same is true of the ITAR restrictions on "technical data." As Plaintiff has demonstrated, the technical data provisions of ITAR on their face implicate scientific and academic publication and exchange. Plaintiff's Motion at 6-7, Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Opp.") at 8-10. Defendants do not dispute this, but assert that the technical data export restrictions do not operate as a prior restraint and are not vague because of the "multiple exceptions to information controlled as technical data." Def. Opp. at 24. Defendants refer to the public domain and teaching exemptions as if those terms were self-defining. But there is no attempt to explain how the exemptions operate as a practical matter; Defendants simply assert that the meaning of the terms is "obvious" and that Prof. Bernstein's interpretation is "unreasonable." / But the rules are far from obvious, and such categorical statements about the scope of the exemptions ring hollow where, as here, there is no authoritative interpretation that supports the government's current litigation position. / See Plaintiff's Opp. at 10. As Plaintiff has noted, the only official interpretation of the technical data provision, a 1980 Munitions Control Newsletter, stresses that "professional and academic presentations and informal discussions, as well as demonstrations of equipment, constituting disclosure of cryptologic technical data to foreign nationals are prohibited without the prior approval of this office." The interpretation also purports to establish review procedures for "cryptologic technical data contained in professional and academic papers and oral presentations." / Although Defendants insist repeatedly that the scope of the technical data limits has changed since the government concluded on its own that the provision was overly broad, e.g., Def. Opp. at 9-10 & n.10, they can point to no official source that Prof. Bernstein, or anyone else, could consult to obtain clear guidance. Indeed, the National Research Council ("NRC"), chartered by federal law to study national encryption policies, conducted an exhaustive review of official sources and found, as of May 30, 1996, that the 1980 Munitions Control Newsletter is "the only document known to the committee that describes the U.S. government explanation of the regulations on technical data related to cryptography." / The NRC concluded that the rules regarding technical data "are particularly difficult to understand, and that "[p]rivate citizens and academic institutions," among others, "are often unclear about the legality of actions such as . . . [t]eaching a course on cryptography that involves foreign graduate students" and "[d]iscussing cryptography with a foreign citizen in the room." NRC Report at 4-30. The ITAR definition of "export" further reinforces the threat of prosecution for teaching activities within the United States, because the term includes transferring technical data "to a[ny] foreign person" regardless of where the communication of technical data takes place. 22 C.F.R. 120.17(a)(2), (a)(4), (a)(5). The May 1996 NRC Report also asked whether the act of uploading to an Internet site or downloading constitutes an "export" within the meaning of ITAR, and what precautions must be taken by the uploader "to remain on the legal side of the ITAR." Despite its exhaustive review, the NRC committee was "unable to find any formal document that indicates answers to these questions." / Administration of the ITAR Scheme and Informal Assurances by the Defendants Reinforce the Threat of Prosecution In the four years since Prof. Bernstein first attempted to obtain assurance from the government that he could publish Snuffle and sought clarification of the ITAR requirements, he has received erroneous advice (that has since been disavowed by the government), had an academic paper wrongly classified as a munition (also disavowed by the government), and been subjected to unconscionable delays. Bernstein, 922 F.Supp. at 1434 ("item defendants now contend could not be subject to regulation was apparently categorized as a defense article and subject to licensing for nearly two years"). Now, as he seeks assurance from the government that he can teach a course in an American university, he receives more of the same. The unofficial "assurances" Defendants provide are incomplete, logically inconsistent and create further uncertainty. The government's assurances that Prof. Bernstein need not fear prosecution for his teaching activities are undercut both by the express terms of the exemptions, as well as by Defendants' application of its principles. The public domain and teaching exemptions apply only to the definition of technical data, which means there is a continuing threat of prosecution for violating ITAR restrictions on defense articles and defense services. As to technical data, the government may still prosecute if Prof. Bernstein's course material exceeds the government's understanding of "fundamental research" that is "commonly taught." Defendants' July 25, 1996 Letter at 4. Additionally, since the Lowell letter threatens prosecution if Prof. Bernstein "intentionally provide[s] technical assistance to a foreign person," Id. at 4, the government is now using the question of "intent" to divest researchers such as Prof. Bernstein of any protection the exemptions might otherwise provide. The uncertainty created by this approach was amply demonstrated by the "guidance" provided by State Department representative Charles Ray. Although the ITAR generally exempts information "which is generally accessible or available to the public," including material "[a]t libraries open to the public or from which the public can obtain documents," 22 C.F.R. 120.11(a)(4), Mr. Ray advised Plaintiff that the exemption might not apply where foreign persons may readily acquire the materials: Well, think about it. You can put it in a library where anybody who'd walk into the library can get it. You know, a rational person knows that. What was the purpose for putting it in the library? So that anyone who walked into the library could get it[,] right? / Under the government's reading of the rules, at least as stated by Mr. Lowell and Mr. Ray, the ITAR exemption may be lost where a researcher places information about cryptography in a location where a "foreign person" may readily gain access to it. This interpretation, which guts both the teaching and public domain exemptions, is consistent with the government's broad definition of the term "export." / The approach makes teaching a course under normal academic methods, as Dr. Bernstein proposes, impossible. The attempted narrowing of the ITAR in United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978) gives no assistance in the context of teaching about cryptography. In Edler, the Ninth Circuit held that, where the commodity in question (carbon composite tape wrappings) could be used in the production of either missile components or golf clubs, the defendant must have reason to know that the technical data is "significantly and directly related" to the military application. Here, however, the government has stressed repeatedly that cryptographic software is not "technical data," but is instead a "defense article." Def. Motion at 21-23. In addition, teaching, even if it involves technical data only, is still a "defense service." Accordingly, any person who transmits algorithms, computer code or other items defined as software such that recipients may understand and use cryptographic software is at risk. Edler simply is irrelevant to the teaching of cryptography. / As Prof. Bernstein's experience makes clear, Defendants administer the export controls as a de facto system of prior review. Although the government insists "[t]he CJ process is not mandatory in any way," Def. Opp. at 13 n.17, it administers the process to require the prior restraint as a practical matter. Defendants decline to define key terms in the ITAR scheme, and refuse to describe essential procedures (e.g., how a document attains public domain status). At the same time, Defendants employ informal statements to deter speech about cryptography. E.g., Bernstein Decl., Ex. D, Telephone Conversation between Dan Bernstein and Charles Ray ("[I]f I were giving that guy advice I would say think twice about it. Is it worth the gamble? . . . .NSA has their own rules, and I won't discuss those."). But when litigation ensues the government claims that its representatives were "merely trying to assist the plaintiff in better understanding the ITAR," and cannot be held accountable. Def. Opp. at 26 & n.34. Defendants take the position that any uncertainty arising from this process is not their responsibility but that of the academics. And, of course, the only way to avoid uncertainty is to file a CJ request. Accordingly, the government repeatedly faults Prof. Bernstein and others for failing to submit to a prior restraint. E.g., Defendants'. July 25, 1996 letter at 1 ("failure to exhaust administrative remedies on this [CJ] determination[ ] contributed to the lack of clarity"); Def. Opp. at 33 ("Prof. Junger did not submit his software for an assessment by the State Department or NSA"); id. at 35 n.47 ("Mr. Miller or Prof. Hoffman could easily have sought clarification through more formal channels of authority"). Effectively, the ITAR exemptions do not exist if a researcher must submit to a prior review process in order to be certain of their applicability. These lax procedures place the burden of uncertainty on the speaker, while allowing the government complete discretion to apply -- or withhold -- the exemptions. The Government's Treatment of Other Researchers in the Field of Cryptography Reinforces the Threat of Prosecution Contrary to the government's position in this litigation, Prof. Bernstein's fear of prosecution is not "unreasonable" in light of its treatment of similarly situated researchers in the field of cryptography. The experience of MIT Press in publishing a book about the cryptographic program PGP typifies the process. Seeking assurance about the ITAR exemptions, MIT submitted the unpublished page proofs of the book for C.J. review. Defendants did not decline to process the request on the ground that no clearance is necessary. To the contrary, Defendants assigned the book a number (CJ 052-95). Prior Decl. at =B6 7. Even though the book was intended to be published and distributed in the public domain by an established and respected University press, the page proofs were held by the government from January through June 1995 and no official response given. In fact, the government never acted on the request. Id. at =B6 13; Zimmermann Decl. at 17-22. Other researchers have been subjected to more direct intimidation. Philip Zimmermann was the target of a three-year criminal investigation, which included temporary detention and interrogation at which a request for counsel was specifically denied, based upon his publication of cryptographic ideas. Zimmermann Decl. at =B6=B6 3-5. Similarly, James T. Demberger was notified by the Defendants that a public domain release of his cryptographic program on the Internet violated the ITAR and could warrant further action, although he could submit "mitigating information." Declaration of James T. Demberger ("Demberger Decl.") at =B6=B6 2-5, attached hereto. In response to additional correspondence in which Mr. Demberger explained that the program and its underlying principles were in the public domain and that he was not in the defense exportation business, the government refused to acknowledge that cryptographic research could be published electronically, and menacingly threatened that "[a]ny further violations of the ITAR . . . will be referred . . . for appropriate criminal and civil action." Id. at =B6 12. In addition to these examples of intimidation, the ITAR scheme has interfered with and hindered several other cryptographers. / The Government's Treatment of Academic Speech in General Reinforces the Threat of Prosecution Defendants' position that the government "does not pass judgment on what can or cannot be deemed a 'common' academic principle," and that Prof. Bernstein's reading of the ITAR exemptions "is by far the most un-reasonable interpretation of the provision[s]," Def. Opp. at 25 (emphasis in original), evidently stems from the assumption that threatening or prosecuting university professors for their teaching and research activities is unthinkable. While this may be true as a constitutional principle, it is not as a matter of historical fact. For that reason, in the absence of legal impediments to Defendants' prosecutorial discretion, the chilling effect on Prof. Bernstein is very real. Whether or not the government is correct in its assertion that "the typical scenario" under ITAR does not relate to "academics applying for a license to publish their ideas," Def. Opp. at 9, there is nevertheless a well-documented history of suppression of scholarly communication, including communication related to cryptography, in the name of national security. In 1982, for example, the Deputy Director of the CIA demanded that the academic community cooperate with the government or risk "far more serious threats to academic freedom." Shortly thereafter, a number of scientific meetings were disrupted by threats of prosecution for violation of export control laws. / Indeed, academic journals have compiled numerous examples of governmental use of the export laws to suppress the exchange of academic information. / Even after the Edler decision (which purportedly narrowed the ITAR) the presidents of Stanford University, California Institute of Technology, Massachusetts Institute of Technology, Cornell University and the University of California wrote to the Secretaries of State and Defense expressing concern that export laws were being applied to traditional university activities. The university presidents complained about letters they had received from the State and Commerce Departments suggesting the university lectures could be considered an export under U.S. law, and requesting that the university gather information on foreign scholars. / The agencies responded to the universities' concerns "through letters from lesser officials trying to placate the fears of the university presidents." However, "the letters were so qualified that it remained unclear just what unclassified technical data were deemed by the Administration to be too sensitive to be taught." / Given this history, the government's inability or unwillingness to give a simple or categorical answer to Prof. Bernstein's request for a stipulation betrays the weakness of its position. It would simply prefer to shift the burden of uncertainty to Prof. Bernstein. As noted above, there have been no authoritative interpretations of the ITAR that would preclude repetition of the examples above -- or worse. The government's assertion that academic discussion and publication in the field of cryptography takes place, Def. Opp. at 1, does not diminish the fact that the government could choose in any given case to take action against a particular individual (and, indeed, has done so). That is the essence of unchecked discretion. Accordingly, Prof. Bernstein's concerns about potential prosecution are quite reasonable. The Likelihood for Success on the Merits is Extremely Strong Due to ITAR's Unduly Restrictive Regulatory Scheme and Defendants' Excessive Discretion. It is undisputed that academic freedom, including the choice of course materials and of the student body that will participate in an educational enterprise, lies at the very heart of the First Amendment. / Indeed, the government appears to agree that teaching "scientific information on cryptography" is a "basic First Amendment activit[y]." Def. Opp. at 9. Nor is there any question but that prior restraints on speech are presumptively invalid and subject to the most exacting scrutiny. / Accordingly, Plaintiff is likely to succeed on the merits because the ITAR scheme, both on its face and as administered by Defendants, operates as a prior restraint on core First Amendment activity and allows the government excessive administrative discretion. The ITAR Scheme Imposes a Prior Restraint On their face, the AECA and ITAR constitute a government licensing scheme that acts as a "general prohibition" on speech related to cryptography, see, e.g., Vance, 445 U.S. at 312, both when the speech at issue (e.g., software) "is" the "munition," see Def. Motion at 21-22, and when it is speech about the "munition" (e.g., technical data and defense services). The vagueness of the ITAR provisions, the circularity of the definitions and the way in which the scheme is administered requires would-be speakers to first check with the government for approval. This is the essence of a prior restraint. See, e.g., FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 255- 256 (1986) (practical effect of a law controls its First Amendment status). Such schemes -- even if purported to be content neutral -- are subject to the most exacting scrutiny, and a reviewing court must look "behind the requirement [of the regulation] to the criteria, or lack of criteria" employed by the government in its implementation. Grossman, 33 F.3d at 1205 n.9. Moreover, any system of prior restraint is subject to the most exacting procedural requirements as to the burdens involved, and the timing, for getting a governmental determination as to the reach of the licensing scheme. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226 (1990); Freedman, 380 U.S. 51 (1965). Rather than argue that the ITAR scheme meets these daunting constitutional requirements, Defendants merely assert that the academic speech at issue here (except as to the software) is "exempt" from the coverage of the ITAR's definition of technical data. / The government dismisses any concerns over its two-year ban on the export of Plaintiff's technical paper describing the Snuffle Encryption System, stating only that it was misunderstood and that such concerns are now "moot." Def. Opp. at 5-6. Moreover, Defendants claim that they are not accountable for informal statements of government officials that may have had a chilling effect, see Def. Opp. at 26-27, 31-34, but that unofficial assurances regarding the exclusion of academic speech from the rules preserves their constitutionality. This analysis is exactly backwards. Informal assurances of official restraint are never sufficient to save an unconstitutional law that permits government officials to restrict protected speech, City of Houston v. Hill, 482 U.S. 451, 467 (1987), whereas informal threats of liability -- even when framed as "mere legal advice . . . plainly serve as instruments of regulation . . . ." Bantam Books v. Sullivan, 372 U.S. 58, 68-69 (1963). See also Baggett, 377 U.S. at 373; Council for Periodical Distributors Assn's v. Evans, 642 F. Supp. 552, 563-564 (M.D. Ala. 1986), aff'd on other grounds, 827 F.2d 1483 (11th Cir. 1987). Indeed, the Supreme court has described such an system as "radically deficient" because it lacks both procedural and substantive safeguards necessary to uphold a regulation of speech. Bantam Books, 372 U.S. at 71. Such safeguards undoubtedly are absent where the government may classify an academic paper as restricted material under the export control laws and effectively impose an embargo on its publication for an extended period. More ominously, Defendants appear to be engaging in "a calculated scheme to provoke retreat," Evans, 642 F. Supp. at 563, by researchers in the field of cryptography. It has initiated investigations, threatened prosecution, urged caution in disseminating information, and generally advised speakers that they may be safe only by submitting their work to prior review. At the same time, Defendants have failed to provide timely answers to questions regarding the scope of the ITAR, Bernstein Decl. at =B6 26, and in some cases have provided no answer at all. Zimmermann Decl. at =B6 22; Prior Decl. at =B6 13. This constitutes an unconstitutional prior restraint. The ITAR Scheme Vests Defendants With Excessive Discretion The First Amendment requires that any restrictions on protected expression must be governed by "narrowly drawn, reasonable and definite standards." / This basic constitutional principle is particularly true when the government administers a permit system that regulates speech, City of Lakewood, 486 U.S. at 755-759, and when it has discretionary authority to impose criminal penalties for noncompliance. Kolender v. Lawson, 461 U.S. 352, 357 (1983). As Plaintiff has demonstrated repeatedly, the ITAR scheme suffers from both infirmities. The government has a great deal of discretion in administering this scheme, and is not limited at all by the exemptions from "technical data." / First, the interrelated definitions of "software," "defense article," "defense service" and "technical data" make any exemption limited to just one of the terms superfluous -- the government, in its discretion, may simply proceed under other ITAR sections. Second, the government has the ability to define the terms of the exemptions, including such concepts as "public domain" and "commonly taught." Even if the ITAR scheme and its exemptions were otherwise a model of clarity, Defendants have administered the scheme in such a way as to create an even greater degree of unchecked discretion. By making the technical data exemptions contingent upon Prof. Bernstein's "intent" in conveying technical information on cryptography, Defendants have expanded their discretion in two ways. First, as explained supra, there is no tangible distinction that separates assisting a foreign person in the classroom from the forms of assistance that generally constitute an "export." Second, the government has taken the position that teaching or publishing activities may be prosecuted if undertaken for a bad "motive." To underscore this point, Defendants have hinted broadly that Prof. Bernstein has crossed the invisible line between teaching students (including foreigners) to understand and apply the principles of cryptography, and "intentionally provid[ing] technical assistance to a foreign person for the purpose of assisting them [sic] in obtaining or using a defense article." / The Supreme Court has stated flatly that there is "no possibility" that an "intent" requirement "would eliminate the excessive discretion" afforded the government in choosing whom to arrest and prosecute for violating a speech restriction unless objective criteria exists for enforcement. / With respect to the ITAR scheme at issue here, the government has the discretion to initiate a prosecution against any person who teaches cryptography or who publishes in the field by alleging that the activity was undertaken with the intent to assist a "foreign person" acquire or use a controlled munition, or is "motived" by a desire to circumvent the ITAR. In this case, Charles Ray has suggested that Prof. Bernstein could run afoul of the "intent" restriction by placing materials in a public library, see Bernstein Decl. in Support of Plaintiff's Motion for Partial Summary Judgment, Exhibit D at 1-3, and the Defendants have suggested that Bernstein's academic pursuits and this litigation are motivated by bad intent. See Def. Opp. at 10, 27, 36. Under such an approach, the government has "virtually unconstrained power to arrest and charge persons with a violation" of the law. / Defendants' manipulation of the "intent" issue makes the ITAR scheme comparable to the Minnesota "gag law" struck down in Near v. Minnesota, 283 U.S. 697 (1931), in which publication was allowed so long as it was done "with good motives and justifiable ends." The Supreme Court described the statutory scheme at issue in that case as "the essence of censorship." Id. at 713. So long as Defendants may initiate a prosecution whenever they dislike a researcher's "motivation" for teaching and publishing cryptographic concepts, the same phrase applies with equal force to the ITAR. The Balance of Hardships Clearly Favors the Plaintiff, and Granting the Preliminary Injunction Would Serve the Public Interest. Balance of Hardships In this case, Prof. Bernstein is only seeking an ability to enforce what the government says is the law -- that academic exchanges of information on cryptography and publication in the public domain are free from the fear of prosecution. Without injunctive relief Prof. Bernstein is impeded in the exercise of core First Amendment pursuits, an injury that clearly outweighs asserted governmental interests. Nordyke v. County of Santa Clara, ___ F. Supp. ___, 65 USLW 2062, 1996 WL 390328 (N.D. Cal. 1996). See Hooters, Inc. v. City of Texarkana, 897 F. Supp. 946, 949 (E.D. Texas 1995). For the Defendants, on the other hand, the only burden is that the government will be forced to operate within the bounds of constitutional law. The balance of hardships clearly favors the Plaintiff. The government's purported "sense of fairness" or moderation does not diminish the hardship for Dr. Bernstein. Baggett, 377 U.S. at 373. The burden of having to rely on the government's self-restraint was amply demonstrated in ACLU v. Reno, 929 F. Supp. 824, 857 (E.D. Pa. 1996), another case in which the government claimed that the chilling effect on speech stemmed from "an exaggerated supposition of how it would apply the law." There, the government had stipulated (and was subject to a temporary restraining order) that the Justice Department would not "initiate any investigations or prosecutions" of indecent material under the Communications Decency Act. Despite the earlier order, the Justice Department subsequently initiated what it characterized as an FBI "review" (but not an investigation) of certain databases on CompuServe. The court held that the Justice Department's creative use of the English language "clearly runs afoul of both this Court's Orders and the Government's promises." See ACLU v. Reno, Civil Action No. 96-963 (E.D. Pa. May 15, 1996) (unpublished order clarifying terms of TRO), attached hereto. The court stressed that the First Amendment does not permit courts simply to "trust the Department of Justice to limit the . . . application [of the law] in a reasonable fashion . . . ." / By comparison, the hardship to the Defendants of granting Prof. Bernstein's Motion is that the government would, in the small measure associated with this one college course, be required to honor its informal descriptions of the ITAR exemptions. Such a thing cannot be considered a "hardship." The Public Interest "No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech." ACLU v. Reno, 929 F. Supp. at 851 (Sloviter, J.). Since the government has acknowledged that teaching "scientific information on cryptography" is a "basic First Amendment activit[y]," Def. Opp. at 9, the requested injunction will necessarily serve the public interest. By sharp contrast, the government has never even attempted to demonstrate any possible loss to the public interest from allowing Prof. Bernstein to freely teach and publish his ideas. The government asserts generally that the proliferation of encryption products "will make it easier for foreign intelligence targets to deny the United States Government access to information vital to national security interests." Crowell Decl. =B6 5 at 3. But the government cannot restrict speech by relying on interests "in the abstract." It must do more than "simply posit the existence of the disease sought to be cured." / This is true even when the government raises claims of national security. "[T]he phrase =D4war power=D5 cannot be invoked as a talismanic incantation=D3 to "remove constitutional limitations safeguarding essential liberties." / Therefore, at a minimum, the government must describe and demonstrate the precise threat it believes Prof. Bernstein's teaching and scientific exchange will cause to the national security. / Even if cryptographic products were not freely available, Defendants would still have the burden to prove the likelihood and magnitude of harm to the national interest presented by Prof. Bernstein's course. It is particularly instructive that the government argued in the Pentagon Papers case that suppression of speech was necessary to preserve secrets relating to cryptography. In a hearing at the U.S. Court of Appeals for the D.C. Circuit, an NSA official argued that, in its "worst case" scenario, publication of the Pentagon Papers would reveal that the United States had the ability to decode North Vietnamese communications. This assertion, however, was insufficient to support the proposed restraint. / The Supreme Court similarly found the national security claims unsubstantiated, holding that the government must demonstrate that publication would cause direct, immediate and irreparable harm to the nation. / The same considerations apply to the ITAR restrictions. / Moreover, since every measurement in life is "compared to what?" the government must demonstrate the incremental harm caused by vindicating Prof. Bernstein's First Amendment rights, compared to the level of academic exchange Defendants assert already exists. See, e.g., Crowell Decl. =B6=B6 18-32. Defendants argue that scholarship regarding cryptography they claim to allow "may have national security implications for intelligence gathering as well as for maintaining computer security." Def. Opp. at 11. If that is true, the government must show the extent to which suppressing Prof. Bernstein's speech here, while allowing other speech about cryptography elsewhere, benefits the public interest. Finally, perpetuating the current ITAR scheme is likely to harm, rather than help, the national security. It is noteworthy that the NRC Report found that the development of effective cryptographic capabilities was necessary to support the government's interest in national security, and that export controls have had a negative impact on the cryptographic strength of many integrated products and have driven major vendors to a "least common denominator" standard of encryption. NRC Report at vii, 4-13. To the extent the ITAR impedes scholarship and instruction on cryptography, the law further threatens the national interest. As the Supreme Court noted in Sweezy, restricting academic speech "'imperil[s]' the future of our Nation." 354 U.S. at 250. CONCLUSION For the foregoing reasons, the Plaintiff respectfully requests that this Court preliminarily enjoin the Defendants from investigating of otherwise enforcing AECA and ITAR or other restrictions on cryptography for activities arising from Prof. Bernstein's teaching activities, as specified in the attached Order. Dated: McGLASHAN & SARRAIL Professional Corporation By: CINDY A. COHN Attorneys for Plaintiff [footnotes] / See Declaration of Julia Kogan ("Kogan Decl.") at =B6=B6 2-8, and exhibits (computer code is posted to the Internet as a class resource by other professors at the University). See also Wanat Decl. at =B6=B6 7, 10-11. / See Plaintiff's July 3, 1996 letter, Bernstein Decl., Ex. B. As this Court well knows, the July 3 stipulation request is not the first time Plaintiff has sought assurance from the government that his research activities do not run afoul of the ITAR. The responses to these efforts have been time-consuming and have operated to restrict the Plaintiff's speech. Bernstein v. Department of State, 922 F.Supp. 1426, 1428-1430 (N.D. Cal. 1996). / The test is "best described as a continuum in which the required showing of harm varies inversely with the required showing of meritoriousness." San Diego Committee Against Registration and the Draft v. The Governing Board of the Grossmont Union High School District, 790 F.2d 1471, 1473 n.3 (9th Cir. 1986); accord Big Country Foods, Inc. v. Board of Education, 868 F.2d 1085, 1088 (9th Cir. 1989) (internal citations omitted). / Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1528 (9th Cir. 1993); Adultworld Bookstore v. City of Fresno, 758 F.2d 1348, 1351 (9th Cir. 1985). / Altmann v. Television Signal Corp., 849 F. Supp. 1335, 1346 (N.D. Cal. 1994); Viacom International, Inc. v. FCC, 828 F. Supp. 741, 744 (N.D. Cal. 1993). / Indeed, the only criterion the government identifies is that some software and its underlying math is sufficiently dangerous because it facilitates encryption and has "functionality." Crowell Decl. at 7. But that is true of many items that the government concedes are exempt from ITAR, such as a book that contains a description of source code, see Schneier Decl. at 7 ("[a]ny competent programmer can translate one into the other; no cryptographic skills are required"), or, more conveniently, printed source code that may be scanned into a computer. See Declaration of Philip Zimmermann ("Zimmermann Decl.") at 4-5; Declaration of Robert V. Prior ("Prior Decl."), Exhibit A, attached hereto. Thus, the scope of the ITAR definition of software, as well as the government's reasoning for its application place at risk the very algorithms and mathematical principles about which Prof. Bernstein seeks to publish and teach. / See Def. Opp. at 25 ("[t]he obvious purpose of the exception is to indicate that technical data does not include information exchanged in the common, everyday occurrence of a university lecture."); id. at 25-26 n.32 ("'information' in the public domain is quite obviously an exclusion from technical data controls"). / The government evidently agrees that an authoritative interpretation is necessary. In an effort to disavow Mr. Charles Ray's actions with respect to the Plaintiff, Defendants cite Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947) for the proposition that "the government cannot be bound by the representations of any employee who does not have actual authority to make a binding determination." Def. Opp. at 26 n.34. As noted below, Mr. Ray's advice contributes to the imprecision and excessive discretion embodied in the ITAR scheme. However, this citation demonstrates that Defendants' and trial counsels' informal assurances that Professor Bernstein has nothing to fear from teaching his course are of no legal significance. / Dept. of State, 80 Munitions Control Newsletter (February 1980), Report of National Research Council, attached to Tien Decl., Exhibit E, at 4-47, ("NRC Report"). / NRC Report, at 4-30. The law authorizing the NRC study ensured full cooperation from all defense agencies, including the NSA. Id. at xii. Additionally, thirteen of the sixteen NRC committee members have security clearances, and they received classified briefings on all materials relevant to the study. Id. at xiii. Still, the definitive interpretation was found to be the 1980 Munitions Control Newsletter. / NRC Report at 4-16 to 4-17. Informal guidance from Defendants in the form of advisory opinions or letters to a particular applicant are nonbinding even with respect to that applicant. Id. at 4-17. At this point the government appears to agree. See Def. Opp. at 26 n.34. / See Bernstein Decl. Exhibit D, Tr. of Telephone Conversation Between Dan Bernstein and Charles Ray, attached to Bernstein Decl. See also Ray Decl. at =B6 7. / The government has taken the position that posting technical data on the Internet is an export because it is accessible to foreign persons, even if there is no intended foreign recipient of the information. See Letter from Mary F. Sweeney to James T. Demberger, Feb. 3, 1995, Demberger Decl. See also 22 C.F.R. 120.9(a)(2). / See, e.g., Tien Decl., Exhibit D, Letter of Aug. 29, 1978 from Larry A. Hammond to Col. Wayne Kay, ("we do not believe that [Edler] resolves the First Amendment issues presented by the restrictions on the export of cryptographic ideas"). See also Crowell Decl. at =B6 20 (restrictions on cryptographic software apply "[w]hatever . . . the intent of the exporter"). / See, e.g., Blaze Decl. (fear of ITAR restricted teaching and academic research activities); Schneier Decl. (uncertainty of ITAR interpretation deterred publication of cryptographic algorithms); Miller Decl. (administrative delay and vagueness causing abandonment of project); Junger Decl. (government refusal or inability to clarify status of encryption program effectively censored research, publications, and communications with foreign persons); Johnson Decl. (refusal to indicate criteria for non-exportable cryptographic software, and delays in government response advantaged competitors). / Allen M. Shinn, Jr., The First Amendment and the Export Laws: Free Speech on Scientific and Technical Matters, 58 George Washington Law Review 368, 371 (January 1990). See also M. Christina Ramirez, The Balance of Interests Between National Security Controls and First Amendment Interests in Academic Freedom, 13 J.C. & U.L. 179, 192 & n.101 (Fall 1986). / Ramirez, supra note 16 at 181 & n. 8 ("In 1980 the Defense Department issued a brochure that deemed inter-Academy exchanges, student exchanges, scientific conferences and symposia, and the entire professional and open literature to be inherently adverse to U.S. military security interests.") / Id. at 187-188 nn.61-64. / Id. at 188 / Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1977); Keyishian v. Board of Regents, 385 U.S. 589 (1966); Sweezy v. New Hampshire, 354 U.S. 234 (1956). / Vance v. Universal Amusement Co., 445 U.S. 308, 317 (1980); New York Times Co. v. United States, 403 U.S. 713 (1971); Freedman v. Maryland, 380 U.S. 51 (1964); Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994). / To the extent source code and cryptographic software are considered to be speech, as this Court previously determined, Bernstein, 922 F. Supp. at 1434-36, Defendants' position constitutes an admission that the ITAR scheme imposes a prior restraint. / Forsyth County v. The Nationalist Movement, 505 U.S. 123, 132-133 (1992); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770 (1988); Freedman v. Maryland, 380 U.S. at 56; Niemotko v. Maryland, 340 U.S. 268 (1951); Thornhill v. Alabama, 310 U.S. 88 (1940); Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059 (9th Cir. 1990), cert. denied, 504 U.S. 914 (1991). / The President has unilateral and unreviewable authority to place items on the Munitions List. See 22 U.S.C. 2778(h). / Defendants' July 25, 1996 letter at 4. See Ray Decl. at =B6 7("if the motive behind the publication of technical data related to a munition was to knowingly circumvent the ITAR, then this would have to be considered in assessing whether a violation occurred"); Def. Opp. at 10 ("[i]n the name of 'academic freedom,' [Bernstein] seeks the unfettered ability to export actual source code software"); id. at 27 ("if the motive behind the publication of technical data related to a munition was to knowingly circumvent the ITAR, then this would have to be considered in assessing whether a violation occurred"); id. at 36 ("what plaintiff seeks to do is not merely 'publish ideas'"). / Hill, 482 U.S. at 471 n.22 ("the meaning and application of such an intent requirement is not self-evident, and could raise independent questions of vagueness or of overbreadth"). / Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, 482 U.S. 569, 576 (1987) (Court invalidated restriction that turned on the "murky" line between "airport-related speech and nonairport-related speech"). / ACLU, 929 F. Supp. at 857 (E.D. Pa. 1996) (Sloviter, C.J.). "[T]he bottom line," wrote Judge Sloviter, "is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors." Id. / Turner Broadcasting System, 114 S. Ct. 2445, 2470 (1994), quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985). / United States v. Robel, 389 U.S. 258, 263-64 (1967), quoting Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934); Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988) ("there is no 'sliding scale' of First Amendment protection under which the degree of scrutiny fluctuates in accordance with the degree to which the regulation touches on foreign affairs"). / It strains credulity for the government to assert that Prof. Bernstein's activities will measurably contribute to the "proliferation of encryption products" given the fact that other countries have less stringent export restrictions, thus making encryption software and hardware readily available worldwide. A Software Publisher's Association study revealed that, in July 1994, there were 392 foreign hardware and software products for encryption applications available from 23 countries. As of last week, Rep. Bob Goodlatte reported that there are now over 500 foreign encryption products and programs available internationally that exceed the limits of U.S. export controls. Testimony of the Hon. Bob Goodlatte to House Committee on the Judiciary, Hearing on H.R. 3011 "Security and Freedom Through Encryption Act" (Set. 25, 1996) at 4 attached as Exhibit A to the Passett Decl. There is no public interest in curtailing speech about cryptography in the name of national security where cryptographic products are freely available worldwide. Nordyke, ___ F. Supp. ___, 1996 WL 390328, *6 (ban on commercial speech related to gun sales at a county fair is enjoined where restriction achieves nothing in the way of curtailing the overall possession of guns in the county). / See Committee on Government Operations, The Government's Classification of Private Ideas, House Rpt. No. 96-1540, 96th Cong., 2d Sess. 117 (1980). The Report noted that the information that NSA was seeking to protect had already been revealed. / New York Times v. United States, 403 U.S. 713 (1971) (per curiam). See id. at 730 (Stewart, J., concurring); id. at 714 (Black, J., concurring); id. at 720 (Douglas, J., concurring). See also Nebraska Press Ass'n. v. Stewart, 427 U.S. 539, 562, 568-569 (1976). / It is doubtful whether the government believes there is any genuine national security issue here. See Passett Decl., attaching as Exhibit B the written statement to the House Committee on the Judiciary, Hearing on H.R. 3011 "Security and Freedom Through Encryption Act," by William P. Crowell, Deputy Director, National Security Agency (Sept. 25, 1996). See also statement of Vice Admiral J. M. McConnell, Hearing on The Administration's Clipper Chip Key Escrow Encryption Program, S. Hrg. 103-1067, 103d Cong., 2d Sess. (May 3, 1994) at 155, attached hereto. Plaintiff's Memo Points and Authorities In Support of Motion for Preliminary Injunction-C-95-0582-MHP