[Typed-in by hand, not completely corrected; may contain errors.
 Please report any to gnu@eff.org.]

FRANK W. HUNGER
Assistant Attorney General
MICHAEL J. YAMAGUCHI
United States Attorney
MARY BETH UITTI
Assistant United States Attorney
     450 Golden Gate Avenue
     San Francisco, CA 94102
     Telephone: (415) 556-6430
VINCENT M. GARVEY
ANTHONY J. COPPOLINO
Department of Justice
Civil Division, Room 1020
     901 E Street, N.W.
     Washington, D.C. 20530
     Telephone: (202) 514-4782
     Fax:       (202) 616-8470 or 616-8460

Attorneys for Defendants

	     IN THE UNITED STATES DISTRICT COURT

	   FOR THE NORTHERN DISTRICT OF CALIFORNIA

DANIEL J. BERNSTEIN,          )
			      )  Case No. C 95-0582 MHP
	   Plaintiff,         )
			      )  MEMORANDUM OF POINTS
vs.                           )  AND AUTHORITIES IN
			      )  SUPPORT OF DEFENDANTS'
UNITED STATES DEPARTMENT OF   )  MOTION TO DISMISS
STATE, et al.,                )
			      )  Hearing:  October 20, 1995
	   Defendants         )  Time:     10:30 a.m.
______________________________)

                             TABLE OF CONTENTS


INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATUTORY AND REGULATORY BACKGROUND. . . . . . . . . . . . . . . . . . . .2

FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

I.  A CHALLENGE TO THE DESIGNATION OF A COMMODITY
    AS INCLUDED ON THE UNITED STATES MUNITIONS LIST
    IS NOT JUSTICIABLE . . . . . . . . . . . . . . . . . . . . . . . . . .5

II. PLAINTIFF HAS NOT RAISED ANY COLORABLE CONSTITUTIONAL
    CLAIM SUBJECT TO JUDICIAL REVIEW . . . . . . . . . . . . . . . . . . 10

    A.  The Determination that Plaintiff's
        Cryptographic Software is Covered by
        the USML Does Not Constitute the Regulation
        of Speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

    B.  Under O'Brien v. United States, the Regulation
        of Cryptographic Software on the USML Furthers
        Legitimate Governmental Interests that are
        Unrelated to the Suppression of Expression . . . . . . . . . . . 13

    C.  The Commodity Jurisdiction Determinations Do
        Not Constitute a "Prior Restraint" on Speech . . . . . . . . . . 19

    D.  The ITAR is not Unconstitutionally Overbroad . . . . . . . . . . 22

    E.  Plaintiff Does Not State a Colorable Claim
        that the ITAR is Impermissibly Vague . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

                                   - i -


		     TABLE OF AUTHORITIES

Cases                                                 

Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . . . 6

Broadrick v. Oklahoma, 413 U.S. 601 (1973) . . . . . . . . . . 20-22

Chicago & Southern Air Lines v. Waterman
  SS. Corp., 333 U.S. 103 (1948) . . . . . . . . . . . . . . . . . 6

Clark v. Community for Creative Non-Violence, 468 U.S. 288
  (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-16

Coleman v. Miller, 307 U.S. 433 (1939) . . . . . . . . . . . . . . 6

Doe v. Schachter, 804 F.2d 53 (N.D. Cal. 1992) . . . . . . . . . . 9

Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990) . . . . . . . . . 9

Members of the City Council of Los Angeles v. Taxpayers
  for Vincent, 466 U.S. 789 (1984) . . . . . . . . . . . . . . 16,23

O'Brien v. United States, 391 U.S. 367 (1968). . . . . . . . .passim

Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604
  (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . .22

Posters 'N' Things, Ltd. v. United States,
  114 S.ct. 1747 (1994). . . . . . . . . . . . . . . . . . . . . .24

Screws v. United States, 325 U.S. 91 (1945). . . . . . . . . . . .24

Spence v. Washington, 418 U.S. 405 (1974). . . . . . . . . . . . .11

Texas v. Johnson, 491 U.S. 397 (1989). . . . . . . . . . . . . . .11

Turner Broadcasting Sys. Inc. v. FCC, 114 S.Ct.
  2445 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . .13

United States v. Albertini, 472 U.S. 675 (1985). . . . . . . . . .15

United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992),
  cert. denied 113 S.Ct. 1273 (1993) . . . . . . . . . . . . . . 7-9

United States v. Edler Industries, Inc., 579 F.2d 516
  (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . .passim

-ii-                           

United States v. Helmy, 712 F.Supp. 1423 (E.D. Cal. 1989). . . . . 6

United States v. Lizarraga-Lizarraga, 541 F.2d
  826 (9th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . .24

United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990) . . . . . 7-8

United States v. Margiotta, 688 F.2d 108 (2d Cir.
  1982), cert. denied, 461 U.S. 913 (1983) . . . . . . . . . . . .24

United States v. Martinez, 904 F.2d 601 (11th Cir. 1990) . . . . 6,8

United States v. Moller-Butcher, 560 F.Supp. 550
  (D. Mass. 1983). . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Spawr Optical Research, Inc.,
  864 F.2d 1467 (9th Cir. 1988), cert. denied,
  493 U.S. 809 (1989). . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Stansell, 847 F.2d 609 (9th Cir. 1988). . . . 20,21

United States v. Top Sky, 547 F.2d 486 (9th Cir. 1976) . . . . . .21

Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . . . . . . .15

Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993) . . . . . . . . . . .11

Webster v. Doe, 486 U.S. 592 (1988). . . . . . . . . . . . . . . 8,9

Young v. American Mini Theaters, Inc. 427 U.S. 50 (1976) . . . . .24

Zemel v. Rusk, 381 U.S. 1 (1964) . . . . . . . . . . . . . . . . .17

Statutes

5 U.S.C. 701(a)(1) . . . . . . . . . . . . . . . . . . . . . .v, 5

22 U.S.C. 2778 . . . . . . . . . . . . . . . . . . . . . . . . . v

22 U.S.C. 2778(a)(1) . . . . . . . . . . . . . . . . . . . .2,5,10

22 U.S.C. 2278(b)(2) . . . . . . . . . . . . . . . . . . . . . . 2

22 U.S.C. 2778(h). . . . . . . . . . . . . . . . . . . . . . v,5,6

50 U.S.C. App. 2401 et seq.. . . . . . . . . . . . . . . . . . . 6

Regulations

22 C.F.R. Subchapter M, Parts 120 to 130 . . . . . . . . . . . . . v

			   - iii -
22 C.F.R. 121.1 XIII(b)(2) ("Category XIII(b)(2)") . . . . .passim

22 C.F.R. 120.1(a) . . . . . . . . . . . . . . . . . . . . . . . 2

22 C.F.R. 120.4. . . . . . . . . . . . . . . . . . . . . . . .3,18

22 C.F.R. 120.4(c) . . . . . . . . . . . . . . . . . . . . . . .19

22 C.F.R. 120.10(a)(5) . . . . . . . . . . . . . . . . . . . . .22

22 C.F.R. 120.11 . . . . . . . . . . . . . . . . . . . . . . . .22

22 C.F.R. 120.17 . . . . . . . . . . . . . . . . . . . . . . . .21

22 C.F.R. 125.03 . . . . . . . . . . . . . . . . . . . . . . . .21

22 C.F.R. 125.4. . . . . . . . . . . . . . . . . . . . . . . . .22

49 Fed. Reg. 47683 (Dec. 6, 1984). . . . . . . . . . . . . . . . .22

			    - iv -

		       ISSUES PRESENTED

    1.  Whether the Court lacks subject matter jurisdiction to
review the designation of a defense article on the United
States Munitions List ("USML") on the ground that such review
is precluded under 22 U.S.C. 2278(h) and the Administrative
Procedure Act, 5 U.S.C. 701(a)(1), and on the ground that the
designation of a defense article on the USML is a non-
justiciable political question.
    2.  Whether the plaintiff has a colorable constitutional
claim: (a) that the commodity jurisdiction determinations by
the State Department that plaintiff's cryptographic software is
covered by the United States Munitions List violate the First
Amendment; or (b) that the Arms Export Control Act ("AECA"), 22
U.S.C. 2278, and the International Traffic in Arms
Regulations ("ITAR"), 22 C.F.R. Subchapter M, Parts 120 to
130, are unconstitutional, on their face and as applied, with
respect to cryptographic software and technical data.

			 INTRODUCTION

    This case concerns policies of the Executive branch which
Congress and the courts have made clear are not subject to
judicial review.  At issue are two "commodity jurisdiction"
determinations in which the United States Department of State
determined that plaintiff's "cryptographic" software --
software that operates to encrypt information and
communications on a computer system -- is included on the
United States Munitions List ("USML") and may not be exported
without a license from the State Department.  Plaintiff
transforms these two determinations, which are comprised of a
few paragraphs, into a 53-page Complaint making broad claims
that the government's policy violates the First Amendment.
    Congress has specifically precluded judicial review of the
designation of commodities subject to export licensing
controls.  Furthermore, the Court of Appeals for the Ninth
Circuit has held that whether a commodity should be subject to
export controls is a non-justiciable political question.
Plaintiff seeks to circumvent this established law by raising
what he characterizes as constitutional claims challenging the
government's actions.
    The Court should find that plaintiff has not stated a
colorable constitutional claim and, therefore, cannot overcome
the clear presumption against judicial review in this case.
Even if regulation of the export of plaintiff's software could
be construed to restrict "speech" to foreign persons, such a
restriction is incidential to regulating the conduct of
exporting functioning, operational cryptographic software.
Under the O'Brien test, such an incidental restriction on
plaintiff's alleged expression easily passes constitutional
muster.  In particular, export controls on cryptographic
software are unrelated to any expressive value that such an
export might have, and the government's interests at issue here
are significant.  A critical national security interest of the
United States is to maintain an effective capability to gather
foreign intelligence information.  The United States, through
export restrictions, seeks to control the widespread foreign
availability of cryptographic devices and software which might
hinder its foreign intelligence collection efforts.  The
government's actions in this case are directed not at
expression, but at the conduct of exporting a commodity that
the Executive branch has determined should be controlled in the
interests of national security.

	     STATUTORY AND REGULATORY BACKGROUND

    The Arms Export Control Act ("AECA") authorizes the
President to control the import and export of defense articles
and defense services, and to designate such items for inclusion
on the United States Munitions List.  22 U.S.C. 2778(a)(1).
Except as otherwise provided by implementing regulations, no
defense articles or defense service so designated by the
President may be imported or exported without a license.  Id.
2278(b)(2).  The AECA is implemented by the International
Traffic in Arms Regulations ("ITAR").
    Part 121 of the ITAR contains the United States Munitions
List.  The category of the USML relevant to this case is
Category XIII(b)(1), which lists as defense articles,
"Information Security Systems and equipment, cryptographic
devices, software, and components specifically designed or
modified therefor, including:
	 (1) Cryptographic (including key management)
	 systems, equipment, assemblies, modules,
	 integrated circuits, components or software
	 with the capability of maintaining secrecy or
	 confidentiality of information or information
	 systems, except cryptographic equipment and
	 software [as described under Category XIII(b)].

    The ITAR contains a "commodity jurisdiction" procedure to
be used when doubt exists as to whether a particular article or
service is covered by the USML.  Upon written requests, the
Office of Defense Trade Controls will provide such a
determination.  22 C.F.R. 120.4.

		      FACTUAL BACKGROUND

    By letter dated June 30, 1992, plaintiff Daniel J.
Bernstein submitted a commodity jurisdiction request to the
State Department for his "snuffle 5.0 software."  Lowell Decl.
para. 8 and Tab 3.  The request described this software, including
a system to encrypt information, called "snuffle.c," and a
system to decrypt information, called "unsnuffle.c".  Id.
    By letter dated August 20, 1992, the State Department
advised Mr. Bernstein that his snuffle 5.0 software is
designated as a defense article under Category XIII(b)(1) of
the United States Munitions List and is subject to the
licensing jurisdiction of the State Department.  Lowell Decl. para.
9 and Tab 4.
    By letter dated July 15, 1993, Mr. Bernstein submitted a
second commodity jurisdiction request for his snuffle software,
accompanied by information which explained how it may be
programmed to encrypt communications on a computer system.
Lowell Decl. para. 13, 19 and Tab 16.  By letter dated October 5,
1993, the State Department advised plaintiff that snuffle
software is cryptographic source code for data encryption and
is designated as a defense article on the USML.  Id. para. 15 and
Tab 18.
    The sole administrative actions taken by the State
Department at issue here were these two commodity jurisdiction
determinations.  Lowell Decl. para. 21.  Pursuant to these
determinations, plaintiff's snuffle cryptographic software is
designated as a defense article covered by Category XIII(b)(1)
of the United States Munitions List.  Id.  Accordingly, Mr.
Bernstein was advised that if he wished to export his software
from the United States, he must first obtain a license from the
State Department.  Id.  Mr. Bernstein did not apply for a
license to export his snuffle software.  Id.  Other than the
commodity jurisdiction procedure, no other provision of the
ITAR has been applied by the State Department to Mr. Bernstein.
Id.
    Plaintiff challenges these CJ determinations, and the
authority under which they were made, on several constitutional
grounds, including that the AECA and ITAR. on their face or as
applied, establish a prior restraint on speech protected by the
First Amendment, and are impermissibly overbroad and vague.
Compl., Counts I-VI.

			   ARGUMENT

I.  A CHALLENGE TO THE DESIGNATION OF A COMMODITY AS INCLUDED
    ON THE UNITED STATES MUNITIONS LIST IS NOT JUSTICIABLE.

    The Secretary of State has exercised the statutory
authority delegated to him by the President to determine that
cryptographic software should be designated a "defense article"
on the USML subject to export licensing restrictions, "[i]n
furtherance of world peace and the security and foreign policy
of the United States."  22 U.S.C. 2778(a)(1).  The Secretary,
through his designee -- the Director of the Office of Defense
Trade Controls -- further determined the plaintiff's snuffle
5.0 software is such a designated defense article.  For both
statutory and constitutional reasons, plaintiff may not
challenge the wisdom or propriety of these decisions.
    The Arms Export Control Act provides that the "designation
by the President (or by an official to whom the President's
functions . . . have been duly delegated), in regulations
issued under this section, of items as defense articles or
defense services for purposes of this section shall not be
subject to judicial review."  22 U.S.C. 2778(h).  There is no
ambiguity about this statute: plaintiff may not challenge in
this Court whether the Secretary of State should have
designated cryptographic software on the USML, nor challenge
the State Department's designation of plaintiff's software as
falling within that category of covered defense articles.  Nor
may this Court second-guess those decisions.
    The non-justiciability of the designation of cryptographic
software on the USML is compelled not only by 2778(h), but by
the Constitution as well.  "The question whether a particular
item should have been placed on the Munitions List possesses
nearly every trait that the Supreme Court has enumerated [that]
traditionally renders a question 'political.'"  United States
v. Martinez, 904 F.2d 601, 602 (11th Cir. 1990) (citing Baker
v. Carr, 369 U.S. 186, 217 (1962)).  Accord United States v.
Helmy, 712 F. Supp. 1423 (E.D. Cal. 1989).  As the Eleventh
Circuit has explained:

	 No satisfactory or manageable standards exist
	 for judicial determination of the issue, as
	 defendants themselves acknowledge the
	 disagreement among experts as to whether [the
	 particular item] belongs to the list.  Coleman
	 v. Miller, 307 U.S. 433, 454-55. . . (1939).
	 Neither the courts nor the parties are privy to
	 reports of the intelligence services on which
	 this decision, or decisions like it, may have
	 been based.  Chicago & Southern Air Lines [v.
	 Waterman SS. Corp.], 333 U.S. [103] 111 [(1948)].
	 The consequences of uninformed judicial action
	 could be grave.  Questions concerning what
	 perils our nation might face at some future
	 time and how best to guard against those perils
	 "are delicate, complex, and involve large
	 elements of prophecy.  They are and should be
	 undertaken only by those directly responsible
	 to the people whose welfare they advance or
	 imperil. . . . " Id.

Martinez, 904 F.2d at 602.
    The Court of Appeals for the Ninth Circuit has addressed
the reviewability of the designation of specific commodities as
subject to export controls in the closely analogous context of
the Export Administration Act ("EAA"), 50 U.S.C. App. 2401 et
seq.,  administered by the Department of Commerce.  Like the
AECA and USML, the EAA prohibits the exportation of commodities
designated on what is now called the "Commerce Control List"
("CCL") without first obtaining a license from the Secretary of
Commerce.  On three separate occasions, the Ninth Circuit held
that Congress intended that the Secretary of Commerce's
designation of a commodity on the CCL, and the Secretary's
specific determination that a particular item at issue is
included in a CCL category, are not subject to judicial review.
See United States v. Spawr Optical Research, Inc., 864 F.2d
1467, 1472-73 (9th Cir. 1988), cert. denied, 493 U.S. 809
(1989); United States v. Mandel, 914 F.2d 1215, 1218-20 (9th
Cir. 1990); United States v. Bozarov, 974 F.2d 1037, 1041-45
(9th Cir. 1992); cert. denied, 113 S.Ct. 1273 (1993).
    In addition, in Mandel, the Ninth Circuit held that the
political question doctrine bars review of the Secretary of
Commerce's determination as to whether restrictions must be
placed on the export of a particular commodity.  914 F.2d at
1222-23.  The court held that such determination "are
quintessentially matters of policy entrusted by the
Constitution to the Congress and the President, for which there
are no meaningful standards of judicial review."  Id. at 1223.
Accord United States v. Moller-Butcher, 560 F. Supp. 550, 553-
54 (D. Mass. 1983).
    In sum, both the AECA and the Constitution bar judicial
review of whether cryptographic software -- and in particular,
plaintiff's snuffle software -- "belongs" on the USML,
Martinez, 904 F.2d at 601, whether such software "should have
been placed" on the USML, Id. at 602, or whether there was "any
basis in fact," Mandel, 914 F.2d at 1222-23, for the
Secretary's decision to place such software on the USML and
subject it to export licensing.  Accordingly, insofar as
plaintiff's claims raise, or even implicate, such questions,
they are non-justiciable.
    The linchpin of plaintiff's claim to judicial review is a
statement by the court in Bozarov, that despite the EAA's
seemingly absolute preclusion of review, . . . "colorable
constitutional claims may be reviewed by the courts even when a
statute otherwise precludes judicial review."  974 F.2d at 1044
(citing Webster v. Doe, 486 U.S. 592 (1988)).  The court in
Bozarov did not reach the impact of its prior holding in Mandel
that the designation of items on the CCL constitute non-
justiciable political questions.  974 F.2d at 1045 n.9.  See
Mandel, 914 F.2d at 1218 (constitutional due process challenge
to the Secretary's administrative decision to designate a
commodity on the CCL is a non-justiciable political question).
    Nonetheless, even assuming, arguendo, that colorable
constitutional challenges to the designation of a commodity as
export controlled may be justiciable, the plaintiff should not
be permitted to obtain judicial review merely by invoking the
Constitution.  On the contrary, because decisions in this area
are presumptively subject to the exclusive judgment of the
Executive branch, the Court should closely scrutinize whether
plaintiff has stated a colorable constitutional claim.  See
Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990), cert. denied,
499 U.S. 905 (1991).
    As set forth below, plaintiff has raised no colorable
claim, for two reasons.  First, this claim does not concern
"speech" protected by the First Amendment, but the conduct of
exporting a functioning defense article.  Moreover, even if the
State Department's control of the export of cryptographic
software incidentally infringes on plaintiff's ability to
engage in some protected expression, such an incidental
infringement easily passes First Amendment muster under O'Brien
v. United States, 391 U.S. 367 (1968).  For this reason, the
Court should find that it lacks jurisdiction to review
plaintiff's claims.

II.  PLAINTIFF HAS NOT RAISED ANY COLORABLE CONSTITUTIONAL
     CLAIM SUBJECT TO JUDICIAL REVIEW.

    A.  The Determination That Plaintiff's Cryptographic
	 Software is Covered by the USML Does Not Constitute
	 the Regulation of Speech.

    An obvious starting point for a First Amendment analysis
is whether speech itself is at issue.  The major theme of
plaintiff's complaint is that the State Department, through its
commodity jurisdiction determinations, seeks to regulate
plaintiff's right to "publish" a "scientific paper" or "to
engage in academic inquiry" and "to openly discuss" ideas
related to cryptography.  See Compl. paras. 1, 3, 78-79, 172-73.
As explained below, the State Department's CJ determinations do
no such thing.  What the Department did was determine that
plaintiff could not export his cryptographic software without
an export license.
    This determination, however, does not constitute the
regulation of expression.  As is evident from plaintiff's first
submission to the State Department in June, 1992, snuffle 5.0
is cryptographic software that functions to encrypt
communications on a computer system.  See Tab 3 to Lowell
Declaration.  As Mr. Bernstein explained, the Snuffle
encryption system can be used to exchange encrypted text
between two people "who have previously exchanged keys" that
would enable them to read the message.  Id.  This system could
work with "zero-delay," meaning that "Snuffle can be used for
interactive conversations: each character typed by one person
can be encrypted, sent to the other person, and decrypted by
the other person immediately."  Id.  Mr. Bernstein also stated
that the Snuffle 5.0 computer software program "can be used for
various applications requiring private key cryptography,
including the example above of interactive text exchange."  Id.
The National Security Agency, which undertook a technical
evaluation of snuffle software, confirmed that snuffle is in
fact cryptographic software capable of maintaining the secrecy
or confidentiality of data.  See Declaration of Louis Giles,
National Security Agency, paras. 16, 17.  Cryptographic software,
like Mr. Bernstein's snuffle software, is considered to be a
functioning cryptographic product essential to encrypting data
on a computer system.  Id. para. 17.
    The First Amendment protects conduct only if it is (or
could be) expressive to other persons.  The conduct must be
"'sufficiently imbued with elements of communication to fall
within the scope of the . . . [First Amendment].'"  Texas v.
Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v.
Washington, 418 U.S. 405, 409 (1974).  In deciding whether
certain conduct is "sufficiently imbued with elements of
communication," the Court looks to "whether '[a]n intent to
convey a particularized message was present, and [whether] the
likelihood was great that the message would be understood by
those who viewed it.'"  Id. (quoting Spence, 418 U.S. at 410-
11).
    The export of cryptographic software is not "'sufficiently
imbued with elements of communication," nor does it "convey a
particularized message" to its foreign recipients.  While
plaintiff characterizes this case as concerning his right to
"publish" a "paper," what he submitted to the State Department
for a commodity jurisdiction determination was not an academic
discourse on algorithmic theories.  Plaintiff submitted source
code for data encryption, along with instructions on how to
make it operational on a computer so that users could have an
interactive, zero-delay, encrypted conversation.  Based on
plaintiff's own description, the dissemination of snuffle
software would have a functional, rather than a communicative
purpose: so that individuals may use the designation of
cryptographic software as a defense article on the USML does
not constitute the regulation of expression upon which a
colorable constitutional claim may be based.

    B.  Under O'Brien v. United States, the Regulation of
	Cryptographic Software on the USML Furthers
	Legitimate Governmental Interests that are Unrelated
	to the Suppression of Expression

    Assuming, arguendo, that plaintiff could "demonstrate that
the First Amendment even applies" to his export of
cryptographic software, Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 293 n.5 (1984) ("CCNV"), nonetheless
his constitutional claims are not colorable.  The State
Department's commodity jurisdiction determinations do not run
afoul of First Amendment principles because any impact on
plaintiff's "speech" would be incidental to the government's
regulation of the conduct of exporting cryptographic software.
    In O'Brien v. United States, supra, the Supreme Court
established the standard for evaluating the government's
regulation of conduct which might, in its particular
applications, impose incidental restrictions on speech.  See
also CCNV, 468 U.S. at 294; Turner Broadcasting Sys., Inc. v.
FCC, 114 S. Ct. 2445, 2469 (1994).  Under O'Brien, an
incidental restriction will be sustained if: (i) it is within
the constitutional power of the government; (ii) it furthers an
important or substantial governmental interest; (iii) the
governmental interest is unrelated to the suppression of free
expression; and (iv) the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the
furtherance of that interest.  391 U.S. at 377.
    It can readily be seen that the first two prongs of the
O'Brien test are met here.  First, regulation of the
exportation of defense articles is squarely within the power of
Congress to provide for the common defense and regulate foreign
commerce.  U.S. Const., Art. I, 8.  Moreover, the
governmental interest at stake -- to control the availability
of cryptography from the United States so that critical foreign
intelligence gathering functions are not harmed -- is
undoubtedly a substantial one.
    The National Security Agency's "signals intelligence"
mission is conducted through sophisticated collection
technologies that allow NSA to obtain information from foreign
electromagnetic signals, many of which are encrypted.  Giles
Decl. para. 4.  A core NSA activity is "cryptanalysis" -- the
science of determining the content of coded messages.  Id.
Based on information derived from these activities, NSA
provides reports on a rapid-response basis to national policy-
makers and military commanders.  Id.  Such intelligence
gathering efforts are critical, for example, to ensuring the
effective accomplishment of military missions with minimal loss
of life.  Lowell Decl. para. 7.  Policies concerning the export
control of cryptographic products are based on the fact that
proliferation of such products will make it easier for foreign
intelligence targets to deny the United States access to
information vital to national security interests.  Giles Decl.
para. 4.  This is a governmental interest that is at least as
compelling, if not more so, than other interests the Supreme
Court has previously found met the O'Brien standard.
Moreover, as noted, the determination that cryptographic
software like snuffle should be considered a "defense article"
subject to export control "[i]n furtherance of world peace and
the security and foreign policy of the United States," 22
U.S.C. 2278(a)(1), is not one for courts to evaluate.
    The third O'Brien prong -- that the regulation is
unrelated to the suppression of free express -- is also
satisfied.  On its face, the ITAR concerns the regulation of
the export of defense articles and services, and not speech or
expression.  Category XIII(b)(1) of the USML pertains to
cryptographic products and software "with the capabilities of
maintaining secrecy or confidentiality of information systems .
. . ."  The focus of this category is on the function of the
commodity.  Cryptographic software is not merely "know how"
that explains how cryptography works, or a description of
scientific ideas or information related to cryptography.  Giles
Decl. para. 17.  Rather, it is because of its function and
capability to encrypt information that snuffle software is
covered by the USML and subject to ITAR controls.  Id.  As
such, the regulation is unrelated to the suppression of speech.
    The final O'Brien prong -- that the incidental restriction
on alleged First Amendment freedoms be no greater than is
essential to the furtherance of the state interest -- is also
met here.  To satisfy this standard, a regulation "need not be
the least restrictive or least intrusive means of doing so."
Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).
Rather, the requirement of narrow tailoring is satisfied 'so
long as the . . . regulation promotes a substantial government
interest that would be achieved less effectively absent the
regulation.'"  Id. at 799 (quoting United States v. Albertini,
472 U.S. 675, 689 (1985)).  See also CCNV, 468 U.S. at 297 ("if
the parks would be more exposed to harm without the sleeping
prohibition than with it, the ban is safe from invalidation
under the First Amendment").
    Inclusion of certain cryptographic software on the USML
satisfies this standard.  Such software is regulated in
furtherance of a substantial national security interest to
protect the United States' signals intelligence capabilities
that are utilized to provide essential information to national
security policymakers and military commanders.  This interest
would be "more exposed to harm" without the export restrictions
than with them.  CCNV, 468 U.S. at 297.  At the same time,
however, the scope of the ITAR's regulation of cryptographic
software is limited.  Category XIII(b) excludes certain
cryptographic software that does not maintain data
confidentiality or secrecy (such as for data authentication and
financial functions), as well as mass market software products
with limited encryption capabilities.  See Giles Decl. paras. 7-9;
Lowell Decl. para. 18 and Tab 20.  By excluding such cryptographic
software that does not pose a risk to national security, the
ITAR "'responds precisely to the substantive problems which
legitimately concern the [Government].'"  CCNV, 468 U.S. at 297
(quoting Members of the City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 810 (1984)).
    A case touching upon the O'Brien test in the specific
context of export controls is United States v. Edler
Industries, Inc., 579 F.2d 516 (9th Cir. 1978).  There, the
court of appeals construed the important interests served by
the ITAR in a manner that did not infringe First Amendment
freedoms.  The court reviewed a conviction for exporting,
without a license, technical data relating to a defense article
on the United States Munitions List.  579 F.2d at 518.  The
defendant claimed that the government's attempt to regulate
technical data was contrary to the First Amendment.  Id. at
519.  The court initially noted that "[b]y regulating conduct,
the Government may pursue its legitimate objectives even though
incidental limitations on expression may result."  Id. at 520.
In construing the ITAR's controls as to the export of technical
data, the court held that the statute and regulations "do not
interfere with constitutionally protected speech" but,
"[r]ather, they control the conduct of assisting foreign
enterprises to obtain military equipment and related technical
expertise."  Id. at 521.
    It follows from Edler that if the government may
incidentally restrict the transmission of technical data by
making it unlawful to assist a foreign national in the
development of a functioning defense article, it may,
consistent with the First Amendment, regulate the exportation
of the functioning defense article itself, even if such
regulation may, in certain cases, incidentally inhibit
"expression."  See also Zemel v. Rusk, 381 U.S. 1, 16-17 (1964)
ban on travel to Cuba by the Secretary of State does not
violate the First Amendment since it inhibits action, not
speech).  For these reasons, the Court should find that
plaintiff has not stated a colorable claim that the
government's actions abridge his First Amendment rights.

    C.  The Commodity Jurisdiction Determinations Do Not
	 Constitute a "Prior Restraint" on Speech.

    Plaintiff claims that the defendants' actions constitute a
"prior restraint" on the "publication of scientific papers,
algorithms or computer programs."  Compl., para. 94.  He alleges
that, before a "scientific paper" containing ideas about
cryptography may be published, an individual must first obtain
a commodity jurisdiction determination from the State
Department, then register with ODTC, and finally obtain a
license to publish the paper.  Id. paras. 94-97 and Counts II-IV.
    Plaintiff's prior restraint claim is the product of his
own misinterpretation of the facts and the ITAR.  The State
Department determined that plaintiff's snuffle software is a
source code for data encryption covered by Category XIII(b) of
the USML.  It is true that those who wish to export a defense
article on the USML, such as cryptographic software, must
register with the State Department and obtain a license in
advance.  But nowhere do the commodity jurisdiction
determinations indicate that plaintiff is barred from
publishing a scientific paper concerning the theory of snuffle,
or expressing ideas about cryptography in general.  What
plaintiff cannot do is export snuffle software without first
obtaining a license from the State Department.
    Thus, to the extent the prior restraint claim is premised
on the notion that the export of snuffle software constitutes
"speech" to foreigners, then, as explained above, the First
Amendment is not implicated because this software functions to
encrypt data on a computer, and control of its export is
unrelated to any incidental restriction on expression that such
an export might entail.
    Plaintiff's prior restraint claim is also unfounded to the
extent it is based on the theory that the commodity
jurisdiction determinations sought to restrain the publication
of the explanatory information plaintiff submitted with his
second CJ request (DJBCJF-2, 5 and 6).  See Lowell Decl. para. 19.
    First, as a factual matter, plaintiff described his first
CJ request (CJ-191-92) as concerning "snuffle 5.0 softward."
See Tab 3 to Lowell Declaration.  For his second CJ request
(CJ-214-93), plaintiff attached to every submission, including
the explanatory material, a cover letter that contained an
identical sentence stating that the item at issue in the CJ
request "was originally designed to convert any one-way hash
function into a zero-delay private-key encryption system."  See
Tab 16 to Lowell Declaration.  This reference is to functioning
cryptographic software, indicating that plaintiff again sought
a determination for snuffle.
    In its June 29, 1995 letter, the State Department advised
plaintiff that its CJ determinations pertained solely to the
snuffle software.  Lowell Decl. para. 19 and Tab 21.  Likewise, the
National Security Agency used the explanatory information
submitted by Mr. Bernstein to evaluate the snuffle software,
but did not assess that information separately for export
control purposes.  Giles Decl. para. 14.  Thus, the CJ
determinations did not constitute a restriction on the
publication of these explanatory items, and there is no basis
for plaintiff's prior restraint claim.
    Also in its June 29 letter, the State Department indicated
that the information at DJBCJF-5 and DJBCJF-6, submitted with
the second CJ request, constitutes technical data, since it
provides instructions on how snuffle may be programmed on a
computer in order to encrypt and decrypt information.
Consistent with Edler, the Department advised Mr. Bernstein
that he would need a license to export technical data if his
objective were to assist a foreign person or enterprise in
obtaining or developing his cryptographic software.  See Edler,
579 F.2d at 521 (ITAR regulation of the export of technical
data to assist a foreign national in the development of a
defense article on the USML is not "an unconstitutional prior
restraint on speech").  Accordingly, as a matter of law,
plaintiff does not have a colorable prior restraint claim.

    D.  The ITAR is not Unconstitutionally Overbroad.

    Plaintiff also claims that the AECA and ITAR violate the
First Amendment on overbreadth grounds.  Compl., Count VI, paras.
148-164.  Under the overbreadth doctrine in First Amendment
cases, a litigant may challenge a statute as overbroad on its
face, even if it were applied fairly to him and did not abridge
his rights.  Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973);
United States v. Stansell, 847 F.2d 609, 612 (9th Cir. 1988).
Nonetheless, overbreadth is "strong medicine" to be applied
"sparingly and only as a last resort."  Broadrick, 413 U.S. at
6l3.  Where, as here, "conduct and not merely speech is
involved, . . . . the overbreadth of the statute must not only
be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep."  Id. at 615; Stansell, 847
F.2d at 613; United States v. Top Sky, 547 F.2d 486, 489 (9th
Cir. 1976).
    Here, plaintiff alleges that the ITAR is overbroad because
it "prevents Plaintiff from "discussing or revealing his ideas
in any public forum in the United States on the grounds that it
might have the effect of disclosing the information contained
therein to a foreign person."  See Compl. paras. 152-153.
Plaintiff's overbreadth claim is foreclosed by the decision in
Edler, in which the court of appeals has already provided a
limiting, constitutional construction of the technical data
provisions of the ITAR, and has ruled that those provisions, so
construed, are not unconstitutionally overbroad.
    In Edler, the court reviewed the definition of the "export
of technical data" in the ITAR, see 579 F.2d at 519 (discussing
22 C.F.R. 125.03 (1977)), and acknowledged that "an expansive
interpretation of technical data relating to items on the
Munitions List could seriously impede scientific research and
publishing and the international scientific exchange."  Id.
But in response to an overbreadth challenge, the court
undertook a construction of the statute and regulations to
preserve their constitutionality.  Id. at 519.  See Broadrick,
413 U.S. at 613 (facial overbreadth should not be found" when a
limiting construction has been or could be placed on the
challenged statute").
    The court construed the definition of the export of
technical data under the ITAR and found that "the statute and
regulations are not overbroad" because, as noted supra, they
"do not interfere with constitutionally protected speech" but
"control the conduct of assisting foreign enterprises to obtain
military equipment and related technical expertise.  Id. at
521.
    The court of appeals' construction of the technical data
provisions of the ITAR in Edler still governs the
interpretation of those regulations.  Though the ITAR has been
revised since Edler, its treatment of technical data has only
become more solicitous of speech activities.  For example, the
current definition of technical data that is subject to export
licensing specifically excludes "information concerning general
scientific, mathematical or engineering principles commonly
taught in schools, colleges, and universities."  22 C.F.R.
120.10(a)(5).
    Also excluded from the definition of technical data is
information in the "public domain," including information
"which is published and which is generally accessible and
available to the public" through sales at newsstands and
bookstores, subscriptions, the mail, libraries, and "through
unlimited distribution at a conference, meeting, seminar, trade
show or exhibition, generally accessible to the public, in the
United States" and "through fundamental research in science and
engineering at accredited institutions of higher learning in
the U.S. where the resulting information is ordinarily
published and shared broadly in the scientific community."  22
C.F.R. 120.11.
    To state an overbreadth claim, it is not enough "that one
can conceive of some impermissible applications of statute";
rather, "there must be a realistic danger that the statute
itself will significantly compromise recognized First Amendment
protections of parties not before the Court for it to be
facially challenged on overbreadth grounds."  Taxpayers for
Vincent, 466 U.S. at 800-01.  In view of the Edler decision,
and the provisions of the ITAR that exclude First Amendment
activities from its scope, plaintiff cannot state a colorable
overbreadth claim.

    E.  Plaintiff Does Not State a Colorable Claim that
	the ITAR is Impermissibly Vague

    Plaintiff's claim that the AECA and ITAR violate the First
Amendment on vagueness grounds, Compl. County V, paras. 134-147,
are also not colorable.  As with his overbreadth challenge,
plaintiff may not raise a vagueness challenge if "the statute's
deterrent effect on legitimate expression is not 'both real and
substantial' and if the statute is 'readily subject to a
narrowing construction."  Young v. American Mini Theatres,
Inc., 427 U.S. 50, 60 (1976) (citation omitted).  The court in
Edler has already provided the "narrowing construction" that
resolves several bases of plaintiff's vagueness challenge.  See
Compl. paras. 137-38, 141 (challenging exemptions to technical data
as vague).
    Plaintiff's claims that the definition of cryptographic
software is both vague and overbroad, Compl. paras. 136, 142, 159,
are also without merit.  The definition of cryptographic
software as that "with the capability of maintaining secrecy or
confidentiality" is surely susceptible to common understanding
by "a person of ordinary intelligence."  Plaintiff's own
description of the function of his software as to encrypt an
interactive conversation on a computer, see Tab 3 to Lowell
Declaration, reflects that it functions to "maintain the
secrecy" of communications.  Moreover, Category XIII(b)
excludes other types of cryptographic software (for data
authentication and financial functions), as well as "mass-
market" software that meets specific encryption criteria, and
therefore, both clarifies and limits the scope of the ITAR.
See Giles Decl. paras. 7-9 and Lowell Decl. para. 18 and Tab 20.
Accordingly, the ITAR provisions on cryptographic software are
neither vague nor overbroad.
    Finally, plaintiff's challenge to the criminal sanctions
in the AECA for "willful" violations, Compl. para. 143, is disposed
of by long-established authority.  The court of appeals has
held that the "willful" requirement in the AECA can be
satisfield only if a defendant acts "with the specific intent
to do . . . what he knows is unlawful".  United States v.
Lizarraga-Lizarraga, 541 F.2d 826, 828-29 (9th Cir. 1976)
(construing 22 U.S.C. 1934, the predecessor to AECA sec. 2778).
Such a scienter requirement forecloses potential vagueness
problems as to criminal enforcement.  Posters 'N' Things, Ltd.
v. United States, 325 U.S. 91, 102-03 (1945) (plurality
opinion); United States v. Margiotta, 688 F.2d 108, 129 (2d
Cir. 1982), cert. denied, 461 U.S. 913 (1983).

			  CONCLUSION

    For the foregoing reasons, this action should be dismissed
for lack of subject matter jurisdiction.

			      Respectfully submitted,

			      FRANK W. HUNGER
			      Assistant Attorney General

			      MICHAEL J. YAMAGUCHI
			      United States Attorney

			      MARY BETH UITTI
			      Assistant United States Attorney
			      450 Golden Gate Avenue
			      San Francisco, CA 94102
			      (415) 556-6430

			      _________________________________
			      VINCENT M. GARVEY
			      ANTHONY J. COPPOLINO
			      Department of Justice
			      Civil Division, Room 1020
			      901 E Street, N.W.
			      Washington, D.C. 20530
			      Tel. (Voice): (202) 514-4782
			      Fax: (202) 616-8470 or
			           (202) 616-8460

			      Attorneys for Defendants