26 March 1998
Source: Hardcopy from Peter Junger

See related documents at Peter Junger's Web site: http://samsara.LAW.CWRU.Edu/comp_law/jvd/

Documents of the suit: http://jya.com/pdj.htm

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

FRANK W. HUNGER
Assistant Attorney General

EMILY M. SWEENEY
United States Attorney

DATE: December 19, 1997

VINCENT M. GARVEY
ANTHONY J. COPPOLINO
Department of Justice
Civil Division, Room 1084
901 E Street, N.W.
Washington, D.C. 20530
Tel. (Voice): (202) 514-4782

Attorneys for the Defendants

OF COUNSEL:

THOMAS C. BARBOUR
ROMAN W. SLONIEWSKY
MARYNELL DeVAUGHN
Office of Chief Counsel for Export Administration
United States Department of Commerce

SUSAN A. ARNOLD
Office of the General Counsel
National Security Agency
United States Department of Defense

INTRODUCTION			1
ARGUMENT			3
I.	WHETHER ENCRYPTION SOFTWARE IS PROPERLY TREATED AS "SPEECH" UNDER THE FIRST AMENDMENT IS DOUBTFUL AND IRRELEVANT TO DECIDING WHETHER IT MAY BE LICENSED FOR EXPORT		3
	A.	Plaintiff s "Software Is Speech" Theory Has Harmful Implications	3
	B.	Whether Software Is Speech Is Irrelevant To Whether Its Export Can Be Regulated	4
	C.	Software Is Not Merely Informational But Primarily Functional	5
	D.	Object Code, Like Source Code, Can Be Executed By A Computer And Not A Common Means Of Expressing Information to Human Beings	7
II.	INTERMEDIATE SCRUTINY APPLIES TO PLAINTIFF'S CLAIMS; PRIOR RESTRAINT THEORY DOES NOT		11
III.	THE REGULATIONS SATISFY INTERMEDIATE SCRUTINY		14
IV.	PLAINTIFF HAS FAILED TO STATE AN "OVERBREADTH" CLAIM OR DEMONSTRATE THAT THE REGULATION IS OVERBROAD		15
V.	DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S "IEEPA" CLAIM AS WELL		20
CONCLUSION

-i-

TABLE OF AUTHORITIES
FEDERAL CASES
Beacon Products Corp., v. Reagan, 633 Supp. 1191   (D. Mass. 1981), aff'd, 814 F.2d 1 (1st Cir. 1987)	19
Board of Trustees, S.U.N.Y. v. Fox, 492 U.S. 469 (1989)	16
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988)	12
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)	4, 15
Dalton v. Specter, 511 U.S. 462 (1994)	18
Dames & Moore v. Regan, 453 U.S. 654 (1981)	18, 19
Forsythe County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992)	13
Franklin v. Massachusetts, 505 U.S. 788 (1992)	18
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949)	5
Landreth Timber Co. v. Landreth, 471 U.S. 681 (1984)	19
New York State Club Association v. New York City, 487 U.S. 1 (1987)	16
Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)	5
Regan v. Wald, 468 U.S. 222 (1983)	19
Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996)	4
Security Pacific National Bank v. Government & State of Iran,   513 F. Supp. 864 (1981)	18
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969)	12-13
Spence v. Washington, 418 U.S. 405 (1974)	9
Texas v. Johnson, 491 U.S. 397 (1989)	9
United States v. Edler Industries, 579 F.2d 516 (9th Cir. 1978)	39
United States v. Donner, 497 F.2d 184 (7th Cir. 1972), cert.   denied, 419 U.S. 1047 (1974)	5
United States v. McNeill, 887 F.2d 448 (3rd Cir. 1989), cert. denied,   493 U.S. 1087 (1990)	5
United States v. Mendelsohn, 896 F.2d 1183 (9th Cir. 1989)	5
United States v. O'Brien, 391 U.S. 367 (1968)	4
United States v. Spawr Optical Research, Inc., 685 F.2d 1076 (9th Cir. 1982),      cert. denied, 461 U.S. 905 (1983)	18, 19
Ward v. Rock Against Racism, 491 U.S. 781 (1989)	11
Zemel v. Rusk, 381 U.S. 1 (1964)	4
STATUTES
International Emergency Economic      Powers Act, 50 U.S.C. §§ 1701-1706 (IEEPA)	40
50 U.S.C. § 1702(b)(1)	20
50 U.S.C. § 1702(b)(3)	19
Trading With the enemy Act, 50 U.S.C. §§ 1-44	18
REGULATIONS
Export Administration Regulations, 15 C.F.R. Part 730	18
EXECUTIVE ORDERS
E.O. 12924 (Aug. 19, 1994), 59 Fed. Reg. 43437 (Aug. 23, 1994),   3 C.F.R., 1994 Comp. 917 (1995), as continued by Notice of   August 13, 1997, 62 Fed. Reg. 43629 (August 15, 1997)	17
E.O. 13026, 61 Fed. Reg. 58767 (Nov. 19, 1996)	17
LEGISLATIVE MATERIAL
House Conf. Rep. 103-482, 1994 U.S. Cong. & Admin. News 305	19
H. Rep. 459, 95th Cong. 1st Sess. (1977)	20
MISCELLANEOUS
A History of Computing in the 20th Century (1980) (excerpt)	8
Michael R. Williams, A History of Computing Technology   (2d ed. 1997) (excerpt)	8
Dictionary of Information Technology (1986) (excerpt)	10
Ronald Mak, Writing Compilers and Interpreters, John Wiley & Sons, Inc. (excerpt)	10

INTRODUCTION

Plaintiff s reply brief breaks little new ground, and largely re-casts old arguments. There is no genuine issue of material fact in this case. What is left for the Court to untangle is the plaintiff s highly inaccurate depiction of the material facts, such as the nature of encryption software and the scope of the export regulations at issue, and plaintiff s fimdamental misapplication of First Amendment law. Whereas plaintiff persists in casting his claim as a right to "publish" ideas on cryptography, this case, fairly described, concerns the transmission outside of the United States of powerful computer software programs that encrypt data. Whereas plaintiff argues that such software is no different in nature from a foreign language, music, a cooking recipe, or theoretical articles in scientific journals, that is demonstrably incorrect.

There is no genuine issue that an encryption software program enables a computer to "scramble" or encrypt text or conununications. Whatever the informational value such software may have for those trained in programming, it is also, indeed primarily, a functional item -- one that provides an actual capability to perform a task on a computer. That is in marked contrast to a mere text of information or ideas, such as a recipe. A person can learn from a recipe about how to do something, but encryption software provides the actual capability - it tells the computer to turn plaintext into ciphertext at a keystroke. This fact is incontrovertible, but never acknowledged by plaintiff. His theories of "prior restraint," applicable to the Pentagon Papers or expressive activities like parades, adult entertairunent, or distributing newspapers, have no relevance to a licensing system that seeks to control the spread of an actual technical capability, like encryption, that can pose serious harm to the United States' security interests abroad.

There is also no genuine issue that all manner of ideas on cryptography are freely published, notably including the algorithms that are implemented through encryption software.

[1]

The regulatory concern is not with the disclosure of cryptographic theory (which is broadly published), but with its actual implementation in hardware or software. Academic and scientific discourse in the field of cryptography is thriving, through the publication of books, articles, seminars and conferences, and numerous academic courses on the subject -- all unregulated by the government. Indeed, plaintiff s most recent declaration, cataloging the many concepts and ideas he wishes to teach, and explaining why he wishes to use actual software as examples in the process, is stunningly irrelevant. See Third Declaration of Peter D. Junger. Plaintiff may teach his class all such topics and distribute software in the process. Indeed, he may distribute software programs to anyone in the United States. The regulations in no way preclude plaintiff from "get[ting] hold of Daniel Bemstein's Snuffle program," see Junger Decl. ¶ 19, -- he can just call up and ask for it. Plaintiff is free attend and participate in public conferences on cryptography here and abroad. He can publish books and articles on cryptographic theory.

The narrow regulation at issue here is this: before plaintiff, like any U.S. citizen or entity, can send actual encryption software programs overseas in electronic form, the government seeks to assess the potential harm of the export, including the nature of the software, to whom and where it is going, and for what purpose -- not in order to regulate the ideas underlying the software (which are often well-known), but to assess the risk that it might be deployed against U.S. interests. It is specious for plaintiff to suggest that free speech or academic freedom is restrained if, in the process of sharing software in the United States with colleagues, students, or anyone else, he is limited from simultaneously making it available to the entire world on the Internet or otherwise. Whatever plaintiff s alleged academic motive, any export would result in a software capability being transmitted abroad where it may be used for harmful purposes.

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Ultimately, plaintiff seeks to cast as a constitutional claim what is really a policy dispute. Congress is now debating how to better advance legitimate uses of encryption to protect the privacy of data and communications, without jeopardizing public safety and national security. This debate belongs in the hands of the political departments, not the judicial branch, as courts have routinely recognized when the export of sensitive items is at issue.

ARGUMENT

I.  WHETHER ENCRYPTION SOFTWARE IS PROPERLY TREATED AS "SPEECH" UNDER THE FIRST AMENDMENT IS DOUBTFUL AND IRRELEVANT TO WHETHER IT CAN BE LICENSED FOR EXPORT.

A. Plaintiff's "Software Is Speech" Theory Has Harmful Implications.

The linchpin of plaintiff s First Amendment argument is that "software is speech." This notion is not only irrelevant to deciding the case, but has unknown and potentially harmful implications. If it were necessary to decide the matter, the more prudent judicial finding would be that encryption software, whatever its informational value, is properly treated as a functional item. The common sense understanding of software -- as recognized by courts -- is as a set of instructions to a computer microprocessor that enables a computer to function a certain way. See Def. MSJ at 7 (citing cases). The common use of software is to perform tasks on a computer, ranging from word-processing, electronic mail, exploring the Internet, playing games, or encrypting data.

Much software, however, is designed to cause substantial harm. Software exists to spread and install "viruses" that can destroy computer hard-drives or the files they contain. Software also exists to "hack" into secure computer systems, such as banking and telephone systems. Such software can be used to invade privacy, commit fraud, and substantially disrupt or

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even endanger people's lives -- not because it contains a harmful "idea" but because it can do harmful things. Those who transmit such software cannot validly claim they were merely distributing an "idea" or "speech" when that "speech" destroyed a computer hard-drive, shut down a phone system, or hacked into a bank account.

In the case of powerful encryption, there are valid uses of hardware and software in securing communications, including to prevent the harins described above. But encryption can also secure the communications of criminals, terrorists, and other hostile entfties overseas, which gives rise to the govemment's concem over its uncontrolled export. When all the consequences are considered, the conclusion that "software is speech," because some people understand the intricacies of how it works, is simplistic and should be avoided, particularly in judicial precedent.¹

B. Whether Software Is Speech Is Irrelevant To Whether Its Export Can Be Regulated.

Plaintiffs "software is speech" theory is, moreover, irrelevant. Sitting on a sidewalk, buming a draft card, camping in a public park, may all constitute "speech" -- that is, activities undertaken to express a point of view -- yet have all been properly subject to regulation. See Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996); United States v. O'Brien, 391 U.S. 367 (1968); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). The freedom to travel overseas to engage in political speech also has First Amendment implications, but can be regulated in certain circumstances. See Zemel v. Rusk, 381 U.S. 1, 16-17 (1964). Moreover, the

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use of items of "speech," such as books, manuals, and printed information, can be proscribed if used to undertake illegal activity. See, e.g., Ohralik v. Ohio State Bar Ass'n., 436 U.S. 447, 456 (1978) ( ... it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed ... ) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)). As the Court in Ohralik explained, numerous examples exist of where communications that may convey information are subject to economic or commercial regulation, such as the exchange of securities information, corporate proxy statements, or information exchanged among competitors. See 436 U.S. at 456.² Indeed, one court has held that computer software containing an accounting program for gambling operations was not speech protected by the First Amendment where used as "an integral and essential part of ongoing criminal activity." United States v. Mendelsohn, 896 F.2d 1183, 1186 (9th Cir. 1989). Accordingly, whether conduct may be regulated pen-nissibly under the First Amendment often does not turn on whether an item of "speech" is at issue. The proper focus is whether the activity at issue -- here the export of encryption software -- is regulated without impermissibly restricting expression.

C. Software Is Not Merely Informational But Primarily Functional.

Even if the case turned solely on the nature of software, there is no genuine issue that software is more than informational, but also directly and primarily functional. In an effort to

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buttress his "software is speech" theory, plaintiff makes a number of points that undermine his cause. He first argues that software cannot function until certain "conditions" are met, namely that a person must load an executable program on a properly configured computer and instruct the computer to execute the program. See Pl. Reply at 4. This argument proves nothing. Obviously, a person cannot encrypt data on a computer without actually using software that encrypts: loading the program, selecting text to encrypt, and pressing "start." That does not make the software speech, any more than the engine of an automobile is speech until someone turns the ignition key.

Plaintiff s comparison to the functioning of a music compact disc is also off-point. See id. Music CDs only create sound; they are exclusively expressive. Encryption software is arguably not expressive at all but, in any event, serves a purely non-expressive ftmction of concealing information. There is no fair comparison between the sound of music and an item that has the capacity to hinder the collection of critical intelligence abroad. Also, contrary to plaintiff s argument, instructions to a computer microprocessor contained in software are quite distinct from the text of a recipe or blueprints. See Pl. Reply at 4-5. The recipe or blueprints solely inform; software performs a function itself.

Finally, the most that computer languages and foreign languages, like German, have in common is the word "language." See Pl. Reply at 8. This analogy sheds little light on the First Amendment issue. While human languages are a means of communicating and exchanging ideas among human beings, programming languages do far more: they can be executed electronically to perform certain tasks on a computer. Moreover, the regulations are not directed at "languages" but at items, hardware and software, that encrypt. Regulating software that encrypts is no

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different than regulating a microchip that cncrypts, yet the latter would surely not be deemed "speech." Ultimately, plaintiff s analogies run into the fact that a computer program is more than "symbolic and linguistic features." See id. at 5.

D. Object Code, Like Source Code, Can Be Executed By A Computer And Is Not A Common Means Of Expressing Information to Human Beings.

Next, plaintiff attempts to show that software is speech even in object code form -- the code of binary digits actually executed by a microprocessor. Plaintiff s evidence of this is that some software engineers, like his declarant Martin Minow, can create programs directly in the form of object code and can interpret computer instructions contained in object code. See Declaration of Martin Minow. Not only does this declaration fail to demonstrate that object code is commonly used to communicate information, but proves that both source code and object code is directly executable on a computer.

Mr. Minow states that he has reviewed object code to "diagnose and repair systems" and to "facilitate debugging and maintenance" of software. See Minow Decl. ¶¶ 10, 11 13.³ All of this is directed toward fixing or improving the actual execution of the software, and does not diminish the fact that software enables the computer to perform certain tasks. It is not surprising that trained programmers like Mr. Minow may be able to interpret code in order to keep the software running. But what Mr. Minow is able to deduce are the operations that object code will cause the computer to perform. Those operations, and the object code that conveys them to a

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computer's microprocessor, are not themselves "speech," because they do not involve communication between human beings. They are nothing more than the non-communicative process of controlling the operation of a machine.

Mr. Minow's reference to the history of programming, while incomplete, demonstrates the point. Even if, prior to the development of higher-level programming languages in "human- readable" form, programs for computers were created and manipulated by programmers in purely numeric form, see Minow Decl. ¶ 5, they remained instructions to be executed by the machines's Central Processing Unit. Id. Some of the earliest digital computers, such as the famous ENIAC machine, were programmed by physically arranging and rearranging their wiring. See Michael R. Williams, A History of Computing Technology 275, 279-81 (2d ed. 1997) ("Programming (actually rewiring) the ENIAC [computer] consisted of plugging a large number of cables between the[] bus wires and the individual panels in order to route the[] activation pulses, and the associated data, to the correct units"); Arthur W. Burks, "From ENIAC to the Stored-Program Computer: Two Revolutions in Computers," in N. Metropolis et al., eds., A History of Computing in the 20th Century 327-33 (1980) ("ENIAC programming was also manual, but one plugged cables and wires and set switches. The method of programming by plugging wires was derived from the IBM plugboard.") (true and correct copy of excerpts attached hereto at Tabs I and 2).⁴ No one could reasonably describe the physical arrangement of wires used in carrying out in a particular computation as "speech" merely because those using the computer were able to figure out how to arrange the wires or could understand (i.e., "read") an existing wiring

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arrangement. Mr. Minow's ability to make a computer perform a task through object code is no different than the ENIAC's programmer's ability to arrange ENIAC's wiring, and his ability to understand object code is no different than the ability of the ENIAC's programmers to understand wiring arrangements.

Beyond this, plaintiff makes no showing that programmers conunonly use object code to exchange information and ideas about cryptography or, more to the point, that the export of object code is commonly undertaken for purely expressive reasons. As the Supreme Court has explained, an activity falls within the scope of First Amendment protection if '[a]n intent to convey a particularized message [is] present, and [where] the likelihood [is] great that the message would be understood by those who viewed it."' Texas v. Johnson, 491 U.S. 397, 405 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)). Nothing in the Minow declaration supports the notion that the export of encryption object code is the product of an "intent to convey a particularized message" or that the "likelihood is great that the message would be understood by those who view it." Indeed, the most common reason people would seek to obtain encryption object code is to use the program to control the operations of their computers. The least common reason for exporting or obtaining encryption object code is so it could be "read," particularly since the vast majority of software users could not comprehend object code (or source code for that matter).⁵

Finally, the Minow Declaration demonstrates that the source code of a prograrn -- which

9

is written in "higher level" human readable symbols -- is far more than informational. Not only can source code be automatically "compiled" into a separate, executable object code but, as Mr. Minow explains, source code written in "interpreted" programming languages like BASIC and PERL can be executed on a computer directly through the use of an "interpreter." See Minow Decl. ¶ 12. Using an "interpreter," the source code of a program is converted to executable object code "on the fly" -- that is, at the same time the program is executed by the computer.⁶ See Minow Decl. ¶ 12 (for interpreted programming languages, source code is the execution format). Unlike a compiler, an interpreter does not ordinarily generate a separate executable file of object code, but creates and immediately executes machine code as the program runs.⁷ Thus, programs in interpreted languages cannot be executed on a computer without the source code itself. This underscores the functionality of software programs in source code form, and that there is no practical difference between the functionality of source code and object code. It also demonstrates further that source code may be exported for entirely non-expressive reasons. The notion that "source code" is the version of software that exists merely for academics to read and understand is wholly unfounded.⁸

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II. INTERMEDIATE SCRUTINY APPLIES TO PLAINTIFF'S CLAIMS; PRIOR RESTRAINT THEORY DOES NOT.

Plaintiff next attempts to show that intermediate First Amendment scrutiny does not apply here because the regulations at issue are content-based on the theory that "they target encryption software" but not other software. See Pl. Reply at 9. Defendants have already explained that not regulating other software does not mean that encryption is controlled for export because of the ideas it contains but, rather, because it has a capability that presents greater national security concems. See Def MSJ at 19-22.

Plaintiff also argues that all software is a "set of instructions" and that the "content is simply the instructions." Pl. Reply at 9. Plaintiff uses the word "content" in the wrong sense. A regulation is "content-based" in a constitutional sense when it seeks to control the dissemination of disfavored ideas and viemtoints. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). An encryption software program does contain instructions to a computer that direct it to encrypt data. While this function is of regulatory concem, the "idea-content" implicit in the program is not regulated. The regulations do not restrict publication of the theory of how the software works, or the algorithm it implements (which are usually published to test their efficacy, see McNamara Decl. ¶ 23). In short, regulating a technical "function" is not regulating "ideas" -- particularly where those ideas are freely published.⁹

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Plaintiff also argues that whether or not the regulations are content-neutral is distinct from -- and irrelevant to -- whether they constitute an impermissible prior restraint under City of Lakewood v. Plain Dealer Publishing Company, 486 U.S. 750 (1988). See Pl. Reply at 10, 12. This is not accurate. Whether or not regulations target the content of expression is\ relevant to the Lakewood analysis. Licensing schemes may be evaluated under a facial prior restraint theory only to the extent they "pose a real and substantial threat" of censorship by giving the goveniment substantial power "to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers." Lakewood, 486 U.S. at 759 (emphasis added). The point of Lakewood is that attempts to license activities that commonly involve expressing ideas (parades, newsracks, adult entertainment) so inherently threaten to encroach on the ideas themselves that a facial analysis is warranted. A licensing scheme directed at the export of an item that, to whatever extent it might be informative for some, perfor-ms a technical function to encrypt, and is most commonly understood to be exported for that purpose, and as to which ideas about the item are not disfavored but openly exchanged, simply does not fit within the Lakewood doctrine.¹⁰

Plaintiff also cites a "second line of cases" that concern broad discretion given to licensing officials over expressive activities. See Pl. Reply at 12-13. This argument should also be laid to rest. In Shuttlesworth v. City of Birmingham, 394 U.S. 147, 149 (1968), the ordinance

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at issue permitted a city commission to refuse a parade permit if it believed "the public welfare, peace, safety, health, decency, good order, morals, or convenience required that it be refused." In Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992), the ordinance at issue allowed the county administrator to adjust, at his discretion, the cost of a permit to demonstrate on public property. Neither case compares with export licensing of an electronic software program and, hence, the issue of whether too much discretion exists to limit speech should never be reached.

Assuming that Shuttlesworth and Forsyth apply, the sweep of the discretion at issue in those cases cannot fairly be compared to the specific licensing system for encryption software at issue. These regulations apply first to software programs, not merely descriptions of such programs, or published books, articles, and ideas about cryptography. Moreover, not just any type of software is regulated, but a specific kind: encryption software in electronic form. Moreover, not only must the software at issue be encryption software, but a specific type of encryption software. Cryptographic programs limited to authenticating data or securing passwords, or limited to certain financial transactions, are not regulated under CCL Category ECCN 5D002. Only programs that have a general capability to encrypt information are at issue here. Furthen-nore, not every such general purpose encryption program is subject to export licensing. The program must be one of the more significant programs covered by ECCN 5D002. One factor used in measuring the significance of such software is the length of the "key" utilized for encrypting and decrypting plaintext. See Def. MSJ at 2 1, n. 19 (discussing significance of key lengths to decrypting communications). Such key lengths are measured in "bits." Software that meets certain "mass-market" criteria, including a key length of 40-bits, is subject to a licensing

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exception. From a First Amendment standpoint, assuming "speech" is even being regulated, this is a very specific regulatory program, which focuses on a specific type of item down to the number of "bits" in the key length. To compare this licensing regime to a city official deciding on a whim as to who can parade, or how much it will cost to do so, is clearly wrong.

III. THE REGULATIONS SATISFY INTERMEDIATE SCRUTINY.

Recognizing the possibility that intermediate scrutiny may apply here, plaintiff nonetheless fails to show that the regulations are unconstitutional under this standard. First, he complains that export controls on encryption software suppress speech on the Intemet by encompassing the distribution of encryption software for academic reasons.¹¹ This argument is without merit. The regulations at issue contain multiple exceptions for academic activity, including exceptions for publication, research, symposia, and teaching and, further, do not regulate the distribution of software in the United States.

What plaintiff is claiming is a right to academic freedom that extends to making the most powerful encryption capabilities available to the entire world, as if they were mere ideas. This is simply unreasonable. As Undersecretary Reinsch explains, whatever the academic intent of an exporter, once software is abroad it can be deployed for decidedly non-academic purposes against the United States' interests. See Reinsch Decl. ¶ 21. The licensing process is intended to assess such potential hanns in a particular export.¹²

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Plaintiff s argument that defendants have made an insufficient showing that the regulations satisfy interxnediate scrutiny, see Pl. Reply at 14-15, is wrong as well. Defendants have set forth the govemment's critical mission of gathering information abroad and preparing reports for Executive branch decision-makers and the military. See McNamara Decl. ¶ 4. We have shown that encryption works to conceal communications. Id. ¶ 5. We have shown that the regulations are targeted at the most significant of encryption items. Id. ¶¶ 11-12. We have shown that, as the strength of encryption increases, the difficulty of decrypting plaintext also increases. See Crowell Congressional Testimony at 10-11 (Tab 14 to McNamara Declaration; Litt Congressional Testimony at 7 (Tab 26 to Coppolino Declaration). We have also shown that a vast array of publication and academic discourse and teaching on cryptography occurs daily. See McNamara Declaration, Tabs 1-11; Coppolino Declaration, Tabs 1-25. All of this has been ignored by plaintiff. As for the foreign availability of encryption, the President and policymakers have determined, and common sense dictates, that the government's interests would be "exposed to more harm" by the uncontrolled export of high quality encryption from U.S. sources. CCNV, 468 U.S. at 297; see E.O. 13026, 61 Fed. Reg. 58767 (Nov. 19,1996); Reinsch Decl. ¶ 21 and Reinsch Congessional Testimony at 3-4; Litt Testimony at 15. Summary judgment for the defendants is amply supported.

IV. PLAINTIFF HAS FAILED TO STATE AN "OVERBREADTH" CLAIM OR DEMONSTRATE THAT THE REGULATION IS OVERBROAD.

Plaintiff s reply underscores that he lacks standing to bring an overbreadth claim and that any such claim would be without merit. Plaintiff concedes that he is not in the business of selling software, such as commercial vendors like Microsoft and Netscape. Yet, by his continued

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reliance on the overbreadth doctrine, plaintiff seeks facial invalidation of the regulations in all applications, including as to commercial interests. Plaintiff never shows, as he must, that the regulations are being applied in a substantial number of impermissible ways. New York State Club Assn. v. NewYork City, 487 U.S. 1, 14 (1987). He continues to argue that the licensing scheme is overbroad because "Professor Junger is an academic and claims academic freedom for his activities." See Pl. Reply at 15. Once again defendants say: this is an as-applied claim that cannot justify facial invalidation.

Plaintiff s reliance on Board of Trustees, S.U.N.Y. v. Fox, 492 U.S. 469, 484 (1989) is clearly in error; indeed, that case supports defendants' position. Fox does not hold that where there is "direct standing" there is also "overbreadth standing." What Fox holds is that if a plaintiff has direct standing (that is, standing to bring an as-applied claim) and standing to bring a valid overbreadth claim, then the plaintiff can bring both claims. Plaintiffs in Fox were university students who challenged a policy that prevented commercial enterprises from engaging in activities in university facilities. The claim initially pressed was that the requirement impermissibly restricted commercial speech. But the students also claimed that the regulation was "overbroad" because it covered non-commercial speech (such as tutoring services). See 492 U.S. at 482. The Court noted that this overbreadth claim "did not challenge hypothetical application to third parties, but applications to the student respondents themselves," id. at 483, for which the students had direct standing. Id. at 484. The court did not preclude plaintiffs from seeking invalidation as to all applications because the plaintiffs "had standing to challenge all applications of the statute." Id. (original emphasis). The students would obviously be injured by both the loss of commercial and non-commercial information.

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Here, however, while plaintiff might have direct standing to vindicate his own interests to the extent the regulations apply to his export of encryption software, he has shown no injury to support standing to vindicate any alleged First Amendment injury caused by the regulations to third parties, such as commercial interests. Indeed, he expressly disclaims having any such interests. To invalidate the regulations as to such commercial applications on overbreadth grounds, where this is the substantially permissible application of the regulations, would be entirely unfounded as a matter of law.¹³

V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S "IEEPA" CLAIM.

Plaintiff claims that the President lacked statutory authority to order export licensing controls on encryption software under the Intemational Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706 ("IEEPA"). See Supp. Comp. Count V.¹⁴ He has not, however, presented any argument on this claim in support of his motion for summary judgment, or in opposition to defendants' motion, claiming it is "dependent on legally significant facts still in dispute." But there is no genuine issue of material fact in this case and the parties have cross-moved for

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summary judgment.¹⁵ Moreover, whether or not there is statutory authority to regulate is a legal question than can be determined from the face of the statute and its legislative history.

As a threshold matter, plaintiff's claim is directed at the President's authority under IEEPA to direct that encryption products be controlled for export. The Court lacks jurisdiction to review this claim.¹⁶ Assuming "for the sake of argument that some claims that the President has violated a statutory mandate are judicially reviewable outside the framework of the APA, see Dames & Moore v. Regan, 453 U.S. 654, 667 (1981), . . . longstanding authority holds that such review is not available when the statute in question commits the decision to the discretion of the President." Dalton, 511 U.S. at 474.¹⁷

The President clearly has statutory authority under the IEEPA to extend export controls in general. See United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1079-1082 (9th Cir. 1982), cert. denied, 461 U.S. 905 (1983). Congress has recognized and approved of this practice. Id. at 1081.¹⁸ Moreover, courts have consistently held that the President's decision to

18

invoke IEEPA to regulate international trade is unreviewable. See Regan v. Wald, 468 U.S. 222, 242 (1983); Beacon Products Corp., v. Reagan, 633 F.Supp. 1191, 1194-95 (D. Mass. 1981), aff'd, 814 F.2d 1(1st Cir. 1987); Spawr Optical, 684 F.2d at 1080. "[W]here there is no contrary indication of legislative intent and where, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President," the President has the greatest discretion to act. Dames & Moore, 453 U.S. at 678-79.

Even if it were reviewable, plaintiff's claim that encryption software is exempt from regulation under IEEPA because it is "informational material" lacks merit. See Supp. Compl. ¶ 83.¹⁹ Aside from the fact that software is not merely informational, there is no indication that Congress intended to exclude so specific and significant an item as software from regulation under IEEPA. Section 1702(b)(3) of IEEPA, which is directed at the publication of pure speech such as books, news, film, and art, does not expressly exclude "software" from regulation, let alone encryption software.²⁰ Legislative history also does not indicate that software is meant to be decontrolled for export by this exemption. See House Conf. Rep. 103-482, 1994 U.S. Cong. & Admin. News 305, 482. Such a reading would fly in the face of Congressional intent that IEEPA be used to extend export controls, and there is no indication that Congress also intended

19

that, at the same time, a significant aspect of export controls over software would lapse.2'J Plaintiffs IEEPA claim should be rejected, particularly given his failure to even argue it on cross-motions for summary judgment.²²

CONCLUSION

For the foregoing reasons, plaintiff's motion for summary judgment should be denied, defendants' motion for summary judgment should be granted, and this action should be dismissed with prejudice.

20

NOTES

1 Plaintiff attempts to set forth eight steps before encryption software can actually cause harrn -- from obtaining the software, to programming the computer with it, to sending and receiving a harmful encrypted message, and acting upon it. See Pl. Reply at 4, n. 9. All of this could take place in a matter of minutes.

2 See also United States v. Donner, 497 F.2d 184, 192 (7th Cir. 1972) (use of constitutionally protected speech can constitute an overt act in furtherance of a conspiracy), cert. denied, 419 U.S. 1047 (1974); United States v. McNeill, 887 F.2d 448, 450-52 (3rd Cir. 1989) (illegal solicitation to commit crime will often take the form of written speech), cert. denied, 493 U.S. 1087 (1990).

3 See also id. ¶ 8 (object or machine code read from computer memory "dumps" in order to determine whether system error "was due to a program bug, hardware error, or operating system error"); id. ¶ 12 ("rely[ing] on object code in order to determine why the computer's actual operation disagrees with the operation the programmer intended").

4 A graphic depiction of programming early computers by arranging wiring and cables is in the photos at Tabs I and 2.

5 A sample of object code in hexadecimal format is set forth at Pl.'s Exh. C to the Supplemental Complaint, "Instructions for TWI.COM" at 4. One such line reads: "276B:0100 61 61 61 61 61 61 61 61-OD OA 61 61 61 61 61 61 aaaaaaaaa..aaaaaa" This is an instruction to a computer, and by no means a common way of explaining cryptography.

6 See Excerpt from Dictionary of Information Technology (1986), definitions of "compiler" and "interpreter" (a true and correct copy attached hereto at Tab 3).

7 See Except from Ronald Mak, Writing Compilers and Interpreters, John Wiley & Sons, Inc., Chapter 1, pp. 3-5 (a true and correct copy attached at Tab 4) at p. 3 ("[t]o execute a source program with an interpreter, you simply feed the source program into the interpreter, and the interpreter takes over to check and execute the program"). Executing source code using a compiler is faster, see id. at 5, while executing source code with an interpreter involves less programming. Id. at 4. But both methods enable the execution of the source program.

8 Plaintiff argues that defining an export to include posting software to an Internet World Wide Web site is "unreasonable," while regulating the transmission of software overseas by electronic mail would not be. See Pl. Reply at 7. This logic of this argument is not apparent. Nowhere does plaintiff dispute that the Web is a global medium by which software may be transmitted world-wide, or that software posted to the Web can be downloaded to a computer hard-drive for execution. See McNamara Decl. ¶ 19.

9 Further proof that the government does not restrain the content of ideas, prior to publication or otherwise, lies in plaintiff s own exhibits, in which he adds to defendants' submission of articles from publications like Cryptologia. See Tabs 1to 6 of the Fourth Declaration of Gino Scarselli; Tabs I to I 0 of the McNamara Declaration. Some of these articles, which obviously were not restrained by the government, contain computer programming language interspersed among theoretical discussion of the program and, thus, are a good example that the govemment's focus is on actual software programs in electronic forin.

10 Thus, apart from application of the intermediate review standard, defendants have addressed the Lakewood prior restraint doctrine separately and demonstrated that, on its own terms, it is inapplicable here. See Def MSJ at 29-32.

11 It must be noted again, however, that plaintiff: (a) seeks to export software by my means, not just the Internet, see Supp. Compl. ¶ 56; and (b) seeks to export software for non-academic reasons. See Second Junger Decl. ¶ 27; Third Junger Decl. ¶ 23.

12 Plaintiff has never applied for a license to export software and, thus, never sought a determination as to whether the export of a particular program covered by the regulations to academics or others in certain countries would be of concern.

13 Notably, Fox was remanded for consideration of any as-applied claims first, which is the normal course of constitutional adjudication. Fox, 492 U.S at 485-96.

14 Export licensing controls on encryption software are set forth in the Export Administration Regulations. 15 C.F.R. Part 730. The EAR generally implements the Export Administration Act of 1979, 50 U.S.C. App. §§ 2401 et seq. ("EAA"), but that statute has lapsed and has been continued in force by Executive Order issued under the IEEPA. Such an Executive Order is currently in effect. See E,O. 12924 (Aug. 19, 1994), 59 Fed. Reg. 43437 (Aug. 23, 1994), 3 C.F.R., 1994 Comp. 917 (1995), as continued by Notice of August 13, 1997, 62 Fed. Reg. 43629 (Aug. 15, 1997).

15 Plaintiff relies on the fact that encryption software is informative to some. Even assuming this is true, there can be no dispute that such software also provides a technical capability to encrypt. Hence, no genuine issue of fact exists relevant to the legal claims.

16 This is not a constitutional claim, but a statutory one, see Dalton v. Specter, 511 U.S. 462, 474 (1994), and the jurisdictional question tums on statutory law.

17 The President is not an "agency" under the Administrative Procedure Act and his action cannot be reviewed under that statute. Franklin v. Massachusetts, 505 U.S. 788, 800 (1992).

18 Spawr concerned the President's authority under the Trading With the Enemy Act, 50 U.S.C. §§ 1-44 ("TWEA") the predecessor of IEEPA. "Section 1702 of IEEPA is, except for stylistic changes, a reenactment of the powers previously conferred on the President by § 5(b) of the TWEA." Securiiy Pacific National Bank v. Government & State of Iran, 513 F. Supp. 864, 875(1981). Legislative history indicates that Congress intended that IEEPA be used to extend export controls when the EAA lapses. See House Report 95-459 to H.R. 7738, Trading With the Enemy Act Reform Legislation, 95th Cong., 1st Sess. (1977).

19 The authority under IEEPA does not extend to the importation or exportation of "information and informational materials," whether commercial or otherwise, regardless of format or medium of transmission, including but not limited to "publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMS, artworks, and news wire feeds." 50 U.S.C. § 1702(b)(3).

20 Statutory construction begins with the plain terms of the statute. Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1984).

21 Indeed, if plaintiff were correct that Congress had already exempted encryption software from export control under IEEPA, it would not presently be considering whether and how to modify the law in this area.

22 Plaintiff also cites Section 1702(b)(1) of IEEPA, which excludes from regulation under IEEPA "any postal, telegraphic, telephone, or other personal communication, which does not involve the transfer of anything of value[.]" See Supp. Compl. ¶ 84; 50 U.S.C. § 1702(b)(1). The provision was meant to preclude regulation of discourse between people by mail, telegraph, telephone, or other means, as well as contributions and donations for humanitarian purposes to persons in an embargoed country. See H. Rep. 459, 95th Cong., 1st Sess. (1977) at 15; S. Rep. 95-466, 1977 U.S. Cong. & Admin. News at 4544. It does not reference or purport to exclude software from regulation under IEEPA.

Respectfully Submitted,

FRANK W. HUNGER
Assistant Attorney General

EMILY M. SWEENEY
United States Attorney

VINCENT M. GARVEY
Deputy Branch Director

[Signature]

ANTHONY J. COPPOLINO
Department of Justice
Civil Division, Room 1084
901 E Street, N.W.
Washington, D.C. 20530
Tel. (Voice): (202) 514-4782
(FAX): (202) 616-8470 or 616-8460

Attorneys for the Defendants

OF COUNSEL:

THOMAS C. BARBOUR
ROMAN W. SLONIEWSKY
MARYNELL DeVAUGHN
Office of Chief Counsel for Export Administration
United States Department of Commerce

SUSAN A. ARNOLD
Office of the General Counsel
National Security Agency
United States Department of Defense

[End]

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