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,         )
                              )  REPLY MEMORANDUM OF POINTS
vs.                           )  AND AUTHORITIES IN FURTHER
                              )  SUPPORT OF DEFENDANTS'
UNITED STATES DEPARTMENT OF   )  MOTION TO DISMISS
STATE, et al.,                )
                              )  Hearing:  October 20, 1995
           Defendants         )  Time:     10:30 a.m.
                              )  Place:    Courtroom 11
______________________________)


                       TABLE OF CONTENTS


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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

I.  DEFENDANTS' COMMODITY JURISDICTION DETERMINATIONS
    CONCERN WHETHER PLAINTIFF MAY EXPORT SNUFFLE
    CRYPTOGRAPHIC SOFTWARE . . . . . . . . . . . . . . . . . . .  2

          A.  The Commodity Jurisdiction Determinations,
              On Their Face, Concern the Exportation of
              Cryptographic Software . . . . . . . . . . . . . .  4

          B.  Plaintiff Cannot Demonstrate a Genuine
              Dispute of Material Fact Under Rule 56
              Standards. . . . . . . . . . . . . . . . . . . . .  6

          1.  There Is No Genuine Issue That the CJ
              Determinations Concerned Snuffle
              Cryptographic Software . . . . . . . . . . . . . .  7

          2.  Plaintiff's Rule 56(f) Affidavit Fails
              to Identify Discovery Directed at Genuine
              Issues of Material Fact. . . . . . . . . . . . . .  8

II.  PLAINTIFF CONCEDES THE COURT MAY NOT REVIEW THE
     DESIGNATION OF DEFENSE ARTICLES ON THE USML . . . . . . . .  10

III. PLAINTIFF DOES NOT STATE A COLORABLE "PRIOR
     RESTRAINT" CLAIM SUBJECT TO JUDICIAL REVIEW . . . . . . . .  11

IV.  DEFENDANTS' ACTIONS WERE NOT "ULTRA VIRES". . . . . . . . .  14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . .  15
                             - i -

                     TABLE OF AUTHORITIES

Cases                                                           Page(s)

Augustine v. United States, 704 F.2d 1074
  (9th Cir. 1983)  . . . . . . . . . . . . . . . . . . . . . . .  3

Black v. Payne, 591 F.2d 83 (9th Cir. 1979). . . . . . . . . . .  3

Brae Transp., Inc. v. Coopers & Lybrand,
  790 F.2d 1439 (9th Cir. 1986)  . . . . . . . . . . . . . . . .  7

Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . .  4

Doe v, Schachter, 804 F.2d 53 (N.D. Cal. 1992) . . . . . . .  4, 5, 6

Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990) . . . . . . . .  3

Garraux v. Pulley, 739 F.2d 437 (9th Cir. 1984)  . . . . . . . .  6

McCarth v. United States, 850 F.2d 558
  (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989)  . . . . .  3

Mission Indians v. American Management & Amusement, Inc.,
  824 F.2d 710, 716 (9th Cir. 1987)  . . . . . . . . . . . . . .  7

NL Industries, Inc. v. Kaplan, 792 F.2d 896 (9th Cir. 1986). . .  4

O'Brien v. United States, 391 U.S. 367 (1968)  . . . . . . . . .  7

Roberts v. Corrothers, 812 F.2d 1171 (9th Cir. 1987) . . . .  3, 4, 6

Sun Valley Gasoline, Inc. v. Ernst Enterprises, Inc.,
  711 F.2d 138 (9th Cir. 1983) . . . . . . . . . . . . . . . . .  3

Thornhill Publishing Co., 594 F.2d 730 (9th Cir. 1979) . . . . .  3

Timberlane Lumber Co. v. Bank of America,
  549 F.2d 597 (9th Cir. 1976) . . . . . . . . . . . . . . . . .  3

Trentacosta v. Frontier Pacific Aircraft,
  Industries Inc., 813 F.2d 1553 (9th Cir. 1987) . . . . . . . .  4

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

United States v. Edler Industries, Inc., 579 F.2d 516
  (9th Cir. 1978)  . . . . . . . . . . . . . . . . . . . . . .  10, 13, 15

United States v. Gurrola-Garcia, 547 F.2d 1075
  (9th Cir. 1976)  . . . . . . . . . . . . . . . . . . . . . . . 15

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

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

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

Webster Mining Council v. Watt, 643 F.2d 618 (9th Cir.),
  cert. denied, 454 U.S. 1031 (1981) . . . . . . . . . . . . . .  4

Zemel v. Rusk, 381 U.S. 1 (1964) . . . . . . . . . . . . . . . .  11

Statutes and Regulations

22 U.S.C.  2278(a)(1)  . . . . . . . . . . . . . . . . . . . .  9

International Traffic in Arms Regulations,
  22 C.F.R. Subchapter M, Parts 120 to 130 . . . . . . . . . . .  2

22 C.F.R.  120.10  . . . . . . . . . . . . . . . . . . . . . .  13

22 C.F.R.  120.10(a)(5)  . . . . . . . . . . . . . . . . . . .  14

22 C.F.R.  120.9 . . . . . . . . . . . . . . . . . . . . . . .  13

22 C.F.R.  121.1 XIII(b) . . . . . . . . . . . . . . . . . . .  10

49 Fed. Reg. 47683 (Dec. 6, 1984)  . . . . . . . . . . . . . . .  13, 14

56 Fed. Reg. 55457 (Oct. 28, 1991) . . . . . . . . . . . . . . .  14


                           - iii -

                         INTRODUCTION

    Plaintiff's opposition to defendants' motion to dismiss
("Pl. Opp." and "Def. Mem.") makes two major arguments designed
to avoid the preclusion of judicial review on the designation
of commodities subject to export controls.  First, plaintiff
erroneously portrays the government's actions in this case as
far removed from the designation of cryptographic software on
the United States Munitions List ("USML") and, instead, casts
the matter as a suppression of "pure speech."  Pl. Opp. at 11.
In the first sentence of his brief, plaintiff mischaracterizes
the government's position by stating that "[t]he U.S.
Government here claims it can restrain the publication of
private ideas about science. . . ."  Id. at 1.  Plaintiff
argues incorrectly that he must obtain advance permission from
the government before he can "present his work to the public in
any form," including in the classroom, or through a scientific
journal, and that "[h]e cannot even stand on a street corner
and talk about his ideas."  Id. at 8.

    Second, plaintiff seeks to preclude the Court from
considering the information defendants have put forward
concerning what administrative actions were taken here and why.
He asks the Court to strike defendants' submissions, rely
solely on plaintiff's interpretation of the facts and
regulations, presume jurisdiction, and allow plaintiff sweeping
discovery -- all in the face of three Ninth Circuit decisions
that strongly weigh against judicial review.

    Plaintiff states throughout his brief that he is not
challenging the designation of cryptographic software on the
USML, and concedes that the Court would have no jurisdiction to
review such a claim.  Each argument he makes -- on
justiciability, and on the prior restraint and "ultra vires"
claims -- hinges on his view that the government seeks to
restrict his right to publish or speak about scientific ideas.

    Even if the Court limited itself to the administrative
correspondence attached to the Complaint and to the
International Traffic in Arms Regulations ("ITAR"), 22 C.F.R.
Subchapter M, Parts 120 to 130, any reasonable reading thereof
indicates that the government designated plaintiff's
cryptographic software as a defense article on the USML, and
did not purport to bar plaintiff from publishing or discussing
scientific ideas.  However, the Court may also consider
defendants' submissions, and plaintiff has failed to
demonstrate a genuine issue of material fact that anything
other than the designation of cryptographic software on the
USML is at issue here.

    Because the government's commodity jurisdiction ("CJ")
determinations are directed at controlling the conduct of
exporting cryptographic software, and because the ITAR is not
otherwise vague or overbroad, the plaintiff does not state a
colorable constitutional claim that is subject to judicial
review.

                           ARGUMENT

I.  DEFENDANTS' COMMODITY JURISDICTION DETERMINATIONS CONCERN
    WHETHER PLAINTIFF MAY EXPORT SNUFFLE CRYPTOGRAPHIC SOFTWARE.

    Defendants' motion to dismiss for lack of subject matter
jurisdiction, and for failure to state a claim upon which
relief can be granted, was based on the judicial construct set
forth in United States v. Bozarov, 974 F.2d 1037, (9th Cir.
1992), cert. denied, 113 S.Ct. 1273 (1993) (citing Webster v.
Doe, 486 U.S. 592 (1988)).  This authority provides that for
cases in which a statute precludes judicial review, and a
plaintiff does not state a colorable constitutional claim, the
matter must be dismissed for lack of subject matter
jurisdiction.  See, e.q., Dorfmont v. Brown, 913 F.2d 1399 (9th
Cir. 1990), cert. denied, 499 U.S. 905 (1991).

    Relying on Roberts v. Corrothers, 812 F.2d 1171 (9th Cir.
1987), plaintiff argues that "issues of jurisdiction and
substance are intertwined" in this case, and, therefore,
defendants' motion must be considered solely under Rule
12(b)(6) standards.  See Plaintiff's Objection to Evidence
("Pl. Obj.") at 3.  For this reason, plaintiff contends that
the Court must strike defendants' declarations and, in lieu
thereof, accept the plaintiff's version of the facts and
regulations as pled.  Id.[1]

---
[1]  Normally, when considering a motion under Rule 12(b)(1)
for lack of jurisdiction, the district court is not restricted to
the face of the pleadings, but may review any evidence to resolve
factual disputes concerning the existence of jurisdiction.
McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988),
cert. denied, 489 U.S. 1052 (1989).
---

    The Court need not pause long over this issue.  Even if
Corrothers is applicable,[2] it does not require that materials
extrinsic to the Complaint be stricken.  As in Doe v.
Schachter, 804 F.Supp. 53, 57 (N.D. Cal. 1992), the Court may
first consider the matter under Rule 12(b)(6).  In addition, if
the Court considers the extraneous materials, and a genuine
dispute of fact exists, it may convert the matter to a summary
judgment motion under Rule 56.  Id. at 64-65; Corrothers, 812
F.2d at 1177; Trentacosta v. Frontier Pacific Aircraft
Industries, Inc., 813 F.2d 1553, 1558 (9th Cir. 1987).  Each
approach is considered below.[3]

---
[2]  The Corrothers line of authority is most apposite to
cases where "jurisdictional facts" are intertwined with the
consideration of the merits, and this normally involves questions
of the definitional reach of a statute.  See Augustine v. United
States, 704 F.2d 1074, 1077 (9th Cir. 1983) (jurisdiction under
the FTCA turned on whether the plaintiff's claim had "accrued" 
under the law); Sun Valley Gasoline, Inc. v. Ernst Enterprises,
Inc., 711 F.2d 138, 139-140 (9th Cir. 1983)(jurisdiction turned
on whether a gas station was a "franchise" within the meaning of
the PMPA); Timberlane Lumber Co. v. Bank of America, 549 F.2d
597, 601-602 (9th Cir. 1976) and Thornhill Publishing Co., 594
F.2d 730, 732-34 (9th Cir. 1979) (jurisdiction under Sherman
Anti-Trust Act turns on whether restraint on trade affects
interstate commerce); Black v. Payne, 591 F.2d 83, 86-878 [stet] (9th
Cir. 1979), cert. denied 444 U.S. 867 (1979) (jurisdiction turned
on whether the investment at issue fell within the statutory
definition of a "security").

[3]  Before leaving the point, while Bozarov and Webster 
reflect both Rule 12(b)(1) and (6), the question should remain a
jurisdictional one.  Webster's requirement that a constitutional
claim be colorable raises a threshold to be met before judicial
review is obtained.  If Corrothers is applied to the
Bozarov/Webster approach, i.e., the facts and merits are deemed
to intertwine, then it may be easier to establish
jurisdiction and get to an evidentiary stage, in the face of a
statutory preclusion of review.  As here, a plaintiff may argue
that the more permissive Rule 12(b)(6) standard applies, that the
allegations must be viewed as true, and that jurisdiction 
presumed.  By artful pleading, a plaintiff may avoid the more
rigorous standards under Rule 12(b)(1), under which extraneous
evidence may be considered and a plaintiff bears the burden of
demonstrating jurisdiction.
---

    A.  The Commodity Jurisdiction Determinations, On
        Their Face, Concern the Exportation of
        Cryptographic Software.

    Under Rule 12(b)(6), the Court "must accept all material
allegations in the complaint as true and construe them in the
light most favorable to plaintiff."  NL Industries, Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Conley v. Gibson,
355 U.S. 41, 45-46 (1957).  However, the Court is not required
to accept legal conclusions or opinions that may be alleged or
drawn from the pleaded facts.  Western Mining Council v. Watt,
643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031
(1981).  Plaintiff's theory that defendants seek to regulate
his right to publish scientific ideas, or speak in a classroom
or on a street corner, is based on his own legal conclusions
and opinions as to what the CJ determinations and the ITAR
mean, and are entitled to no deference.  If the Court relied
solely on the correspondence attached to the Complaint, it can
determine the true nature of the administrative actions at
issue -- to control the export of cryptographic software,
snuffle 5.0.  See Schachter, 804 F. Supp. at 57 (attachments to
Complaint may be considered under Rule 12(b)(6)).

    First, plaintiff labeled his letter of June 30, 1992, to
the State Department a "Commodity Jurisdiction Request for
snuffle 5.0 software."  See Exh. A1 to Complaint.  He described
the snuffle encryption system as "a zero-delay, private-key
encryption system."  Id.  "'Zero-delay'" means that Snuffle can
be used for interactive conversations: each character typed by
one person can be encrypted, sent to the other person, and
decrypted immediately."  Id.  The actual information submitted
included a brief description of how snuffle works, along with
source code -- the letters and symbols that reflect the snuffle
algorithm in computer programming language, and instructions
for programming snuffle.  See Exh. D1.

    It strains reason to characterize this as a mere "paper"
setting forth scientific ideas.  On its face, that plaintiff
submitted was not an exposition of cryptologic theories, but
actual source code in computer programming language, along with
detailed information on how to make it operational on a
computer.  This material, accompanied by a letter in which
plaintiff states "I wish to export the software known as
'snuffle 5.0'," indicates that plaintiff sought a commodity
jurisdiction request for snuffle 5.0 software.[4]

---
[4]  All five letters accompanying the second CJ request (CJ-
214-93) contained an identical sentence stating that the item at
issue in the request "was originally designed to convert any one-
way hash function into a zero-delay private-key encryption
system."  See Exh. D1 to Complaint.  This also indicates that
plaintiff sought a determination for cryptographic software.
---

    In addition, both of the State Department's CJ
determinations are directed at snuffle software.  The first CJ
determination, on August 20, 1992, specifically references
"Snuffle 5.0 Software."  See Exh. B to Complaint.  The second
CJ determination, on October 5, 1993, indicates that items at
issue "contain cryptographic source code for data encryption."
Exh. E to Complaint.

    To interpret these determinations as meaning the plaintiff
is barred from publishing ideas about the science of
cryptology, or explaining them in a classroom or on a street
corner, is unfounded.  The Court should not be asked to strike
down an important statutory and regulatory program on the basis
of speculation.  There can be no genuine issue that the factual
foundation on which the colorability of plaintiff's claims must
be assessed is the designation of his cryptographic software as
a defense article on the USML.

    B.  Plaintiff Cannot Demonstrate A Genuine Dispute
         of Material Fact Under Rule 56 Standards.

    Next, if the Court wishes to consider the materials
submitted by defendants, it may do so pursuant to Fed. R. Civ.
P. 56.  Corrothers, 812 F.2d at 1177-78; Schachter, 804 F.
Supp. at 64-65.[5]  Indeed, plaintiff has acknowledged this by
filing a Rule 56 (f) affidavit.[6]   Under Rule 56, a party can
demonstrate that it requires discovery to set forth "specific
facts showing that there is a genuine issue for trial."  See
Fed. R. Civ. P. 56(e) and (f).  However, as the Ninth Circuit
has observed:

         [r]eferences in memoranda and declarations to a
         need for discovery do not qualify as motions
         under Rule 56(f).  Rule 56(f) requires affidavits
         setting forth the particular facts expected from
         the movant's discovery.

Mission Indians v. American Management & Amusement, Inc., 824
F.2d 710, 716 (9th Cir. 1987); Brae Transp., Inc. v. Coopers &
Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).  Plaintiff's Rule
56(f) affidavit fails to meet these requirements.

---
[5]  Other than for pro se plaintiffs, formal notice is not
required where a court transforms a Rule 12(b)(6) motion to Rule
56; rather, notice otherwise exists where the party is
fairly apprised that the court may look beyond the pleadings.  See
Garraux v. Pulley, 739 F.2d 437, 438-39 (9th Cir. 1984).

[6]  Thus, plaintiff has taken the conflicting positions of
both objecting to evidence as extraneous to the Complaint and
attempting to demonstrate a genuine issue of material fact
under Rule 56.  Plaintiff's actions under Rule 56 renders irrelevant
his procedural objections to defendants' submissions.
---

         1.   There Is No Genuine Issue that the CJ
               Determinations Concerned Snuffle
              Cryptographic Software.

    The crux of plaintiff's factual dispute concerns whether
the government sought to regulate the "non-code" items
submitted with his cryptographic software.  See Pl. Obj. at 4-
5.  Since he concedes that the description of such software on
the USML is not reviewable, see Pl. Opp. at 10, plaintiff seeks
to show that pure speech is at issue.  Otherwise, under O'Brien
v. United States, 391 U.S. 367, 376 (1968), the government's
action is directed at conduct that only incidentally affects
speech, and plaintiff cannot state a colorable First Amendment
claim.  See Def. Mem. at 12-20.

    However, plaintiff does not set forth specific facts that
genuinely controvert that the CJ determinations concerned the
exportation of cryptographic software.  The government's
submissions do little more than reaffirm the conclusion that
may be drawn from the administrative correspondence.  See Giles
Decl.  16-17.  Hence, there is no genuine dispute on the
issue.[7]

---
[7]  Plaintiff questions the veracity of the State
Department's letter of June 29, 1995.  See Pl. Obj. at 5; Tab 21
to Lowell Declaration.  The government has set forth its position
through sworn declarations, and plaintiff may not establish a
genuine issue by asserting his doubts.  Moreover, the genesis of
the June 29 letter was not dubious.  During the district court's
"meet-and-confer" process, the parties discussed narrowing the
claims at issue, and the State Department issued its letter.
While paintiff may try to controvert its substance, the
credibility of this action should not be questions --
particularly in view of plaintiff's failure to appeal the second
CJ determination.
---

         2.  Plaintiff's Rule 56(f) Affidavit Fails to
             Identify Discovery Directed at Genuine
             Issues of Material Fact

    Plaintiff's Rule 56(f) affidavit is also deficient because
it primarily refers to multiple topics of discovery that will
not present a genuine issue of material fact.  For example,
plaintiff seeks to discover whether the normal scientific
method includes the communication of computer code through on-
line discussion groups, and whether source code has
communicative value.  See Declaration of Cindy A. Cohn 
8(c)(d)(j)(m).[8]
---
[8]  This is information plaintiff could already present to 
support his claims.  His Rule 56(f) declaration also indicates
that he presently "can show" that the "speech of other
individuals known to him has been restrained." Cohn Decl.  5 and
 10(a)(iii)(3).  Plaintiff cannot suggest he has knowledge of
facts and then withhold them from defendants and the COurt.
Plaintiff was also obligated to make an initial disclosure of
evidence in support of his position.
---

    The Court can assume that the process of scientific
development may include on-line discussions, and that
cryptographic source codes have a theoretical communicative
value.  The question here is whether the government may
nonetheless control the exportation of cryptographic source
codes.  As defendants have shown, such exports controls are
unrelated to the suppression of expression.  See Def. Mem. at
10-12.  As shown further below, the academic community is able
to engage in a detailed exchange of ideas on cryptology without
simultaneously exporting cryptographic software.  Hence, no
genuine issue of material fact exists as to the scientific
method.

    Plaintiff also would seek immaterial discovery on the
foreign availability of cryptographic software, as well as on
the government's interest in controlling the spread of such
software.  See Cohn Decl.  6; Pl. Obj. at 4; Pl. Opp. at 21,
n.9.  The Court may assume that the United States is not the
sole source of crytographic software in the world.  The
question here, however, is whether it is unconstitutional under
the First Amendment for the government to attempt to control
the foreign availability of powerful cryptographic software in
furtherance of its foreign signals intelligence mission.  See
Lowell Decl.  7; Giles Decl.  4.  The availability of
cryptographic software abroad may go to the merits of the
policy, but is not material to whether such an export control
is unconstitutional.

    Moreover, the designation of defense articles is based on
the President's discretionary judgment that this would further
world peace, and the security and foreign policy of the United
States.  22 U.S.C.  2778(a)(1).  This is precisely the type of
judgment that is precluded from scrutiny.  United States v.
Mandel, 914 F.2d 1215, 1220 (9th Cir. 1990); see also United
States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978)
(the federal government "undeniably possesses the power" to
regulate international arms traffic).  Plaintiff asserts that
he is "not challenging the wisdom" of such policy judgments.
Pl. Opp. at 30.  For these reasons, the government's interests
at stake do not present material facts in dispute.[9]
---
[9]  Plaintiff would also inquire into whether cryptographic
software has civilian uses.  Cohn Decl.  8(a).  This fact is
evident from the ITAR itself, which references several civilian
uses of cryptography, such as for bank ATM machines, and also 
seeks to decontrol the export of "mass-market" encryption
software through an expedited review process.  See 22 C.F.R.
 121.1 XIII(b).  Several other discovery topics concern legal
theories that plaintiff can argue now.  See, e.g., Cohn Decl.
 8(i)(k) (l)(o)(p)(q) and 10(a)(iii)(5)(7)(8) (ITAR terms
arbitrary and capricious or exceed statutory authority).
Plaintiff also would inquire into how defendants "administer and
implement" the ITAR.  See Cohn Decl.  8(e) and (f);  10(a)(i)
(1)-(6_ and  10(a)(iii)(1) and  10(a)(v)(1)(2) and (vi).
Plaintoff offers no evidence that the ITAR is not administered as
defendants have demonstrated.  See Def. Mem. at 20-24.
---

II.  PLAINTIFF CONCEDES THE COURT MAY NOT REVIEW THE
     DESIGNATION OF DEFENSE ARTICLES ON THE USML.

    Throughout his opposition, plaintiff concedes defendants'
main point -- that the Court may not review the designation of
a defense article on the USML, see Pl. Opp. at 10, 28, 35, 38 --
and his justiciability argument is built on the premise that
pure scientific speech is at issue.  In this way, plaintiff
assumes the conclusion at the onset: colorable constitutional
claims are justiciable.

    This reflects little more than the holding of Webster v.
Doe.  Defendants assume, arguendo, that a colorable claim was
justiciable.  See Def. Mem. at 8-9.  Defendants recognize that
courts have reviewed First Amendment claims involving foreign
affairs.  See, e.g., Zemel v. Rusk, 381 U.S. 1, 16-17 (1964).
that is why, consistent with Bozarov, defendants focused their
effort on explaining that plaintiff did not state colorable
claims.  See Def. Mem. at 10-24.  For this reason, plaintiff's
long exposition on justiciability and reviewability is beside
the point.

    Rather, the initial consideration is that challenges to
the designation of commodities as subject to export controls
are unreviewable under the APA and non-justiciable, unless a
colorable constitutional claim is stated.  When the Court
assesses the actions at issue and the legal claims made, it
will see that the government's designation of plaintiff's
encryption software as a defense article is directed at conduct
and only incidentally affects speech.  See Def. Mem. at 15.

III.  PLAINTIFF DOES NOT STATE A COLORABLE "PRIOR RESTRAINT"
      CLAIM SUBJECT TO JUDICIAL REVIEW.

    The only First Amendment issue for which plaintiff
presents argument is the prior restraint claim.  On this issue,
the Court should first take judicial notice of the scientific
journals and symposia concerning cryptology attached to the
Second Declaration of Louis F. Giles.  These materials discuss,
in technical and mathematical detail, cryptographic algorithms
for data encryption.  This demonstrates that there is a
substantial body of unfettered scientific exchanges concerning
cryptologic ideas, including through international symposia.[10]
It also shows that the dispute here concerns the exportation of
actual cryptographic software, not academic discussion about
its underlying theory.
---
[10]  The Court may note that the 1995 RSA Data Security
Conference was held in Redwood City and that Dr. Ronald Rivest
made a presentation on the RC5 encryption algorithm (Tab 4).  The
CRYPTO-90 Conference was held at UC Santa Barbara (Tab 5).
---

    Plaintiff argues that there is no rational distinction
between the communication of ideas in English and by
mathematical symbols in computer language.  See Pl. Opp. at 21-
23.  He makes the bald assertion that "software is speech . . .
it is information" analogous to "notes on a sheet of music" or
"step-by-step instructions for recipes in a cookbook."  Id. at
23.
    In a some sense, software may reflect ideas and
information.  But unlike music or cooking recipes, source codes --
"mathematical ideas expressed in computer language" -- may
be executed on a computer to perform the specific function of
encryption data.  Thus, plaintiff's contention that "there is
no purpose to a distinction between such functioning software
and a complete description of that software in English. "Pl.
Opp. at 22, is specious.  An English explanation of the theory
of snuffle would inform the intellect.  The source code would
enable a person to actually encrypt data on a computer.  While
plaintiff's intention in exporting snuffle may be to
communicate, Pl. Opp. at 18, the USML designation of
cryptographic software does not seek to prevent the disclosure
of "harmful ideas," id. at 11, but to control the foreign
availability of a commodity that can function to encrypt data.
Under the O'Brien line of authority, such a regulation does not
abridge First Amendment freedoms.  See Def. Mem. at 13-16.[11]
---
[11]  Plaintiff also argues that he did not submit functioning
software for a CJ determination but a piece of "paper."  Pl. Opp.
at 22.  This argument is disingenuous.  The CJ requests described
software the plaintiff wished to export.  Plaintiff concedes that
he wished to transmit the software electronically "to many places
on the globe."  Id. at 2, n.2.
---

    Finally, plaintiff argues that the CJ determinations
pertained to the non-code technical data he submitted and,
thus, that the ITAR technical data provisions, see 22 C.F.R. 
120.10, constitute a system of prior restraint.  The court of
appeals in Edler disposed of a facial challenge to the
technical data provisions as a prior restraint.  Edler, 579
F.2d at 521.  In an effort to revive the First Amendment theory
rejected in Edler, plaintiff cites several opinions of the
Department of Justice, Office of Legal Counsel.  See Pl. Opp.
at 17, 21-22; Declaration of Lee Tien.  But the OLC analysis is
fully consistent with Edler.[12]
---
[12]  See Tien Declaration, 1981 OLC opinion at 60053 (in 
Edler context, government has a compelling interest in regulating
conduct of technical advice); 1984 OLC opinion at 60008 (based on
Edler, technical data provisions of the ITAR could be
constitutionally applied to persons or firms who disseminated
technical data in assisting foreign enterprises in development of
sensitive technology).
---

    Moreover, a few months after the last OLC opinion, the
State Department indicated that its practice in controlling
technical data would be consistent with Edler.  49 Fed. Reg.
47683 (Dec. 6, 1984) (Tab 1A to the Lowell Declaration).  In
this case, the State Department has advised plaintiff that if
his objective in exporting technical data is to provide
technical assistance, e.g., "in order to assist a foreign
person or enterprise in obtaining or developing cryptographic
software," a license would be required.  See Tab 21 to Lowell
Declaration; Edler, 479 F.2d at 521; see, e.g., 22 C.F.R. 
120.9 (definition of "defense service").  Plaintiff's
discussion of Edler misses this key point and, as a result, his
claim that the ITAR was utilized as a prior restraint against
his technical data, or his right to even discuss his ideas, is
unfounded.

    Also, plaintiff is wrong that the ITAR was not amended
after the OLC analysis.  Pl. Opp. at 17.  While the definitions
upheld in Edler are conceptually similar to the current ITAR,
see Def. Mem. at 21, n.1, the State Department amended the
ITAR' provisions on technical data to clarify their reach.  In
1984, after the OLC opinions, the Department added the
definition of "public domain" at then-section 120.18, and also
provided in then-section 125.1 that information in the public
domain is not subject to export controls.  See 49 Fed. Reg.
47682 (Dec. 6, 1984).  In October 1991, the Department again
amended the ITAR to exempt general scientific information from
definition of technical data.  See 56 Fed. Reg. 55457 (Oct. 28,
1991).  Thus, the current ITAR definition of technical data
expressly excludes information in the public domain, as well as
"information concerning general scientific, mathematical or
engineering principles commonly taught in schools, colleges,
and universities."  22 C.F.R.  120.10(a)(5).

IV.  DEFENDANTS' ACTIONS WERE NOT "ULTRA VIRES"

    Finally, plaintiff argues that defendants, in
"promulgating and applying the ITAR to plaintiff," exceeded
delegated authority because "Congress never intended the [Arms
Export Control Act] to be applied to the publication of
academic or scholarly publication of scientific and technical
information."  Pl. Opp. at 25.

    Assuming, arguendo, there is jurisdiction to review this
claim,[13] the court in Edler pointed out that Congress did intend
to permit the regulation of technical information to some
extent, which the court construed to be in connection with "the
conduct of assisting a foreign enterprise to obtain military
equipment and related technical expertise."  Edler, 579 F.2d at
521.  Plaintiff's claim that the ITAR was applied to him
otherwise is unsupported.
---
[13]  Since the AECA delegated authority to the President,
plaintiff is wrong that this non-constitutional claim is
reviewable.  Dalton v. Specter, 114 S.Ct. 1719, 1725-27 (1994).
Also, where judicial review of an action is precluded by statute,
it is also precluded under the APA, see 5 U.S.C.  701(a)(1), and
this extends to the claim brought under 5 U.S.C.  706(2)(C) that
an action was beyond statutory authority.
---

    With respect to cryptographic software, the Ninth Circuit
has consistently recognized the broad grant of authority given
to the President in designating commodities as subject to
export control.  See Bozarov, 974 F.2d at 1044 (citing United
States v. Gurrola-Garcia, 547 F.2d 1075, 1077-78 (9th Cir.
1976).  Accordingly, the President's authority under the AECA
to designate crytographic software as a defense article does
not present a statutory "ultra vires" violation, nor state a
colorable constitutional claim.

                          CONCLUSION

    For the foregoing reasons, plaintiff's complaint should be
dismissed for lack of subject matter jurisdiction.

                           Respectfully submitted,

                            FRANK W. HUNTER
                            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) 556-6181

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

                            Attorneys for Defendants

Dated:  October 5, 1995