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