CINDY A. COHN, ESQ.; SBN 145997
McGLASHAN & SARRAIL
Professional Corporation
177 Bovet Road, Sixth Floor
San Mateo, California  94402
Telephone	(415) 341-2585
Facsimile	(415) 341-1395

Attorneys for
DANIEL J. BERNSTEIN




	UNITED STATES DISTRICT COURT

	NORTHERN DISTRICT OF CALIFORNIA


DANIEL J. BERNSTEIN, an individual,	)  Case No. C 95-0582 MHP
					)
	Plaintiff,			)
					)   DECLARATION OF 	
					)   CINDY  A. COHN, ESQ., IN	
v.             				)   SUPPORT OF REQUEST FOR
					)   DENIAL OF DEFENDANTS
UNITED STATES DEPARTMENT OF  		)   MOTION TO DISMISS UNDER
 STATE, et. al.,                       	)   F.R.C.P. 56(f)
					)
	Defendants.              	)
________________________________________)


	I, CINDY A. COHN, declare as follows:
1. 	I am attorney at law associated with the law firm of McGlashan &
Sarrail, Professional Corporation, duly admitted to practice law in the
State of California and the Northern District of California, and am one of
Plaintiff's attorneys of record in the current case.  I have personal
knowledge of the facts set forth herein, unless otherwise indicated, and if
called as a witness could and would so testify.

2. 	Although Defendants' moving papers are cast solely as a Motion to
Dismiss under F.R.C.P. 12(b)(1) and 12(b)(6), and not as a Motion for
Summary Judgment or in the alternative, this Court has discretion to convert
this Motion into a Motion for Summary Judgment.  Therefore, this Declaration
is submitted under the provisions of F.R.C.P. 56(f) in the event that this
Court wishes exercise its authority to convert Defendants' Motion to Dismiss
to a Motion for Summary Judgment and in accordance with the Court's
invitation to Plaintiff at the Case Management Conference to explain the
need for discovery.

3.	If the Court construes Defendants' Motion to Dismiss as a Motion for
Summary Judgment, Plaintiff requests that he be allowed time to present
extrinsic evidence he has  gathered in support of his case to the Court, in
accordance with F.R.C.P. 12(b).

4.	In addition, Plaintiff submits that if the Court construes Defendants'
Motion to Dismiss as a Motion for Summary Judgment, discovery is required in
order to defend against such a motion.  Because Plaintiff has had no
discovery, and because Defendants have not
moved for summary judgment under F.R.C.P. 56,  this affidavit is not as
complete as it would be if offered in the usual circumstances where
Plaintiff has full notice of either the precise legal or factual issues
contested by Defendant.  However, while Plaintiff cannot exhaustively set
forth in this ambiguous context every material of issue of fact for which
discovery is needed, he can provide the Court with a general overview of his
intended discovery.

5. 	Plaintiff's claim of an unlawful prior restraint logically depends on
the basic factual premise that Defendants' scheme restrains or is likely to
restrain speech protected by the First Amendment.  At present, Plaintiff is
able to show that his own speech has been restrained.  He can also show that
the speech of other individuals known to him has also been restrained,
in that they have refrained from publishing for fear of violating the AECA.
Discovery is needed, however, to establish the extent to which Defendants
have restrained the speech of individuals similarly situated.

6.	Plaintiff's unlawful prior restraint claim also depends on the absence
of a sufficient justification by the government for its prior restraint,
namely, that as applied to plaintiff, or on its face, this prior restraint
scheme is valid because publication will surely result in significant,
direct, immediate, and irreparable harm to our nation or its people.  Assuming,
arguendo, that the government has met its initial burden of demonstrating
such a justification with the requisite specificity, discovery will be
needed to contest the government's evidence.  For instance, Defendants have
declared that the uncontrolled availability abroad of cryptographic devices
and software would hinder the United States' ability to gather foreign
intelligence.  See Declaration of Louis F. Giles of the National Security
Agency, filed with Defendants Motion to Dismiss.

6.   Discovery is likely to show that any such harm  is a speculative
prediction, is unsupported by facts, would not be a direct result of
publication, would not occur immediately and would not be irreparable.   In
particular, plaintiff is informed and believes that Defendants possess
information about the widespread foreign availability of cryptographic
software stronger than that which plaintiff seeks to publish.  Therefore,
plaintiff is likely to discover that cryptographic information, including
software, is widely available throughout the world, and that the
pre-publication licensing scheme of Defendants does not in fact further any
proffered significant government interest.

7. 	Plaintiff is also informed and believes that Defendant National
Security Agency has stated in written response to questions by the Senate
Subcommittee on Technology and the Law at hearings held on or about May 3,
1994 that "Encryption software distribution via Internet, bulletin board, or
modem does not undermine the effectiveness of encryption export controls."
Discovery will ascertain that NSA in fact made such statement
to Congress and will uncover the factual premises underlying this statement.
If so, then Plaintiff's intended actions of publishing his work to the
Usenet newsgroup sci.crypt, as well as actions by persons similarly
situated, is unlikely to cause harm significant enough to justify this
prior restraint scheme.

8. 	 If discovery is allowed, plaintiff will utilize both the subpena power
as to third parties and its ability to conduct discovery from Defendants, to
gather additional evidence necessary to prove the allegations of his
Complaint, including, but not limited to:
	(a)  What are the domestic, nonmilitary uses of cryptography to
maintain privacy of communication;
	(b)  Whether "direct, immediate and irreparable damage" or even
indirect, non-immediate and reparable damage will result from the
publication of Plaintiff's items;
	(c)  Whether the normal, scientific method for developing the science of
cryptography includes the communication of computer code;
	(d)  How online discussion groups about science are an integral
part of the development of science, in the same way as print journals and
academic conferences;
	(e)  How, in fact, Defendants have implemented and administered the
ITAR;
	(f)  Whether Defendants are, in practice, asserting jurisdiction over
merely "software which functions to encrypt" as they now claim;
	(g)  What factual support exists for Defendants claims that the ITAR, as
applied to Plaintiff, is necessary or even helpful to Defendants to reach
their stated goals;
	(h)  Whether the ITAR, on its face or as applied by Defendants to
Plaintiff and others, impairs protected speech or otherwise exceeds the
scope necessary to meet its alleged goals;
	(i)  Whether persons of ordinary intelligence can understand the
regulatory terms as used by the ITAR such as: "software," "technical
data,"public domain,""information concerning general scientific,
mathematical or engineering principles commonly taught in schools, colleges
and universities," and "software with the capability of maintaining
secrecy," as well as other terms such that it is clear and certain at any
point in time what is being regulated and what is not;
	(j)  Whether computer code, especially source code, has communicative
purposes between human readers;
	(k)  Whether it is arbitrary and capricious to allow communication of an
idea in English or in mathematical symbols, while restricting communication
of the same idea in the language of computer code;
	(l)  Whether it is arbitrary and capricious to allow communication of an
idea on printed paper or transmitted by other constitutionally protected
means  while restricting its communication on online discussion groups;
	(m)  The ease of translating a scientific paper written in English or
mathematical symbols into computer code;
	(n)  The ease of translating computer code written on paper into
functioning code through typing it into a computer or utilizing an optical
character recognition  scanner;
	(o)  The arbitrariness of the regulatory distinction between
authentication programs and encryption programs;
	(p)  Whether Defendants have the statutory authority to suppress
publication of Plaintiff's noncommercial items;
	(q)  Whether Plaintiff's speech contributes to the current political
debate concerning cryptography;

9.	Such information cannot be presented at this time because there has been
no formal discovery in this case, and Defendant's initial disclosures did
not include this information.  Plaintiff requires use of the Court's
subpoena power, depositions, and other discovery procedures to ascertain
this information.

10.	Anticipated Discovery.
  a	Depositions.
    i. 	Plaintiff anticipates deposing the following defendants within 90
days, or as soon thereafter as is reasonably possible, or as ordered by the
Court:

	(1)	Mark Koro, National Security Agency.  Mr. Koro's exact duty title is
unknown.  It is anticipated that Mr. Koro will provide evidence of
Defendants' implementation and administration of ITAR, and specifically how
Defendants' determined that the Items are subject to ITAR.

	(2)	Greg Stark, National Security Agency.  Mr. Stark's exact duty title
is unknown.  It is anticipated that Mr. Stark will provide additional
testimony similar to that of Mr. Koro.  However, since the exact nature of
Mr. Stark's and Mr. Koro's positions in the National Security Agency, and
their working relationships, if any, are unknown, Plaintiff anticipates
discovery of that information either by deposition, production of documents,
interrogatory, or disclosure by Defendants.

	Plaintiff further anticipates that their testimony at deposition will be
substantially different in content from each other so as to allow Plaintiff
to ascertain a full and complete picture of these individual Defendants'
involvement in implementing and administering the scheme of regulation.

	(3)	Gary Oncale, Major, USAF, Bureau of Politico-Military Affairs, Office
of Defense Trade Controls, Department of State.  It is anticipated that
Major Oncale will provide evidence of Defendants' implementation and
administration of ITAR, and specifically how Defendants determined that the
Items are subject to ITAR.

	(4)	Michael Newlin, Acting Director, Defense Trade, Department of State.
It is anticipated that Mr. Newlin will provide evidence of defendant's
implementation and administration of ITAR, and specifically how Defendants
determined that the Items are subject to ITAR.

	(5) 	Charles Ray, Bureau of Politico-Military Affairs, Office of Defense
Trade Controls, Department of State. It is anticipated that Mr. Ray will
provide evidence of defendant's implementation and administration of ITAR,
and specifically how Defendants determined that the Items are subject to ITAR.

	(6)	William B. Robinson, Director, Bureau of Politico-Military Affairs,
Office of Defense Trade Controls, Department of State.  It is anticipated
that Mr. Robinson will provide evidence of defendant's implementation and
administration of ITAR, and specifically how Defendants determined that the
Items are subject to ITAR.

  ii.	Plaintiff further anticipates deposing "DOE" defendants ascertained
during the above mentioned depositions, or through other discovery, as soon
thereafter as is reasonably possible, or as ordered by the Court.

  iii.	Plaintiff further anticipates deposing, both orally and through the
business records subpena power, known third-party witnesses, including, but
not limited to:

	(1)	Former and current employees of  the Department of State and the NSA
in order to determine the intended and applied scope of the ITAR regulations;

	(2)	Persons in addition to Plaintiff who have been prevented from
communicating about cryptography as a result of the regulations, including
those prevented from speaking about it at academic conferences and on
on-line discussion groups;

	(3)	Persons who have been chilled in their communications about
cryptography out of fear of the regulations, including those who wish to
speak about it in academic classrooms and at academic conferences;

	(4)	Persons who wish to communicate about cryptography but who have found
that the regulations are drafted such that a person of ordinary intelligence
cannot determine what is restricted and what is not;

	(5)	Persons who can testify as to the effectiveness of the regulations in
meeting Defendants' stated goals.  For instance, persons will testify as to
whether the regulations prevent foreign governments or citizens from using
or obtaining strong cryptography;

	(6)	Persons who can testify as to the possibility of "direct, immediate
and irreparable damage" due to the disclosure of  Plaintiff's ideas under
the Pentagon Papers test, or even indirect, non-immediate and reparable damage;

	(7) 	Persons who can testify about the ongoing public debate about
cryptography;

	(8) 	Persons who can testify as to the political value to them of
Plaintiff's speech in the ongoing public debate about cryptography;

	(9) 	Persons who can testify about the effect of the regulations on the
availability of U.S. companies to compete in the world-wide market of
cryptographic products.

  iv.	Depositions of Unknown Witnesses
	Plaintiff further anticipates deposing as yet unknown witnesses ascertained
during the above mentioned depositions, or through other discovery, on the
issues mentioned above and others raised during the course of discovery, as
soon thereafter as is reasonably possible, or as ordered by the Court.

  v. 	Demands for Production.
	Plaintiff anticipates serving Demands for Production of Documents on
Defendant as soon as the Court authorizes the parties to proceed with
discovery.  Plaintiff anticipates the documents requested will show, among
others
	(1)  The internal regulations, procedures and directives used by
Defendants to implement and administer the ITAR;
	(2)  The actual implementation of the ITAR;
	(3)  Defendants testimony at Congressional hearings about the ITAR,
including testimony directly contrary to the positions which Defendants have
taken in this case;
	(4)  Documents which provide factual support, if any exists, for
Defendants assertions that their regulation of the communication of
information about cryptography is necessary to further their stated goals.

  vi.	Interrogatories.
Plaintiff anticipates serving Interrogatories on Defendants as soon as the
Court authorizes the parties to proceed with discovery.  Plaintiff
anticipates the interrogatories will allow Plaintiff to discover, among
others, how Defendants use their internal regulations, procedures and
directives to implement and administer the ITAR;

  vii.	Expert Witnesses.    Plaintiff reserves the right to designate expert
witnesses who will testify about the issues described above.

11.	I believe that the information outlined above will raise genuine issues
of material fact and therefore, if Defendants' Motion to Dismiss is
converted to a Motion for Summary Judgment, it should be denied.

I declare under penalty of perjury that the foregoing is true and correct.

	Executed at San Mateo, California on _______________, 1995.

							_____________________________
							CINDY A. COHN, ESQ.
							Attorney for Plaintiff
Cindy A. Cohn
McGlashan & Sarrail, P.C.
177 Bovet Road, 6th Floor
San Mateo, CA 94402