World Wide Catalog 1995 Summer/World_Wide_Catalog_InfoMagic_Summer_1995.iso/pages/wwweff_b.org/pub/alerts/eff_beru.com

Text File | 1995-06-11 | 84KB | 1,449 lines

CINDY A. COHN, ESQ.; SBN 145997
McGLASHAN & SARRAIL
Professional Corporation
177 Bovet Road, Sixth Floor
San Mateo, CA 94402
Telephone [phone]
          (Fax) 341-1395

Attorneys for
DANIEL J. BERNSTEIN





    IN THE UNITED STATES DISTRICT COURT

      NORTHERN DISTRICT OF CALIFORNIA

DANIEL J. BERNSTEIN            )    Case No.   C 95-0582-MHP
an individual,                 )
                   )
          Plaintiff,       )
                   )
v.                             )    COMPLAINT
                   )    (Declaratory Relief,
UNITED STATES DEPARTMENT       )    Injunctive Relief)
OF STATE; THE UNITED STATES    )
ARMS CONTROL & DISARMAMENT     )
AGENCY; UNITED STATES          )
DEPARTMENT OF DEFENSE;         )
UNITED STATES DEPARTMENT OF    )
COMMERCE; NATIONAL SECURITY    )
AGENCY; WARREN G. CHRISTOPHER; )
WILLIAM B. PERRY; RONALD       )
BROWN; ADMIRAL J. M.           )
McCONNELL; JOHN B. HOLUM;      )
WILLIAM G. ROBINSON; CHARLES   )
RAY; GARY M. ONCALE;           )
AMBASSADOR MICHAEL NEWLIN;     )
MARK KORO; GREG STARK;         )
and DOES 1-100, Inclusive,     )
                   )
          Defendants.      )
                   )

                       TABLE OF CONTENTS



      A.  INTRODUCTION . . . . . . . . . . . . . . . . . . . .1

      B.  JURISDICTION . . . . . . . . . . . . . . . . . . . .2

      C.  VENUE  . . . . . . . . . . . . . . . . . . . . . . .2

      D.  PARTIES  . . . . . . . . . . . . . . . . . . . . . .3

          (1)  Individual Defendants Allegations . . . . . . .7

      E.  REGULATORY CONTEXT . . . . . . . . . . . . . . . . .9

          (1)   Key ITAR Definitions . . . . . . . . . . . . 11

          (2)   Public Domain Exception  . . . . . . . . . . 12

          (3)   Scienter . . . . . . . . . . . . . . . . . . 13

          (4)   Judicial Review  . . . . . . . . . . . . . . 13

          (5)   ITAR's Purported Policy For Designating
                And Determining Defense Articles
                And Services . . . . . . . . . . . . . . . . 14

      F.  FACTS  . . . . . . . . . . . . . . . . . . . . . . 14

          (1)   CJ 191-92  . . . . . . . . . . . . . . . . . 16

          (2)   Plaintiff Attempts To Separate The
                Scientific Paper From The
                Computer Program . . . . . . . . . . . . . . 17

      G.  RESULT OF DEFENDANTS' REJECTION OF
          PLAINTIFF'S CJ REQUEST . . . . . . . . . . . . . . 18

      H.  CHILLING EFFECT ON PLAINTIFF . . . . . . . . . . . 19

      I.  CHILLING EFFECT ON OTHERS  . . . . . . . . . . . . 19

      J.  CRYPTOLOGY IS A CURRENT ISSUE OF PUBLIC DEBATE . . 20

      GENERAL ALLEGATIONS  . . . . . . . . . . . . . . . . . 22

      COUNT I (UNCONSTITUTIONAL PRIOR RESTRAINT) . . . . . . 23

      COUNT II (CJ REQUEST PROCESS IS UNCONSTITUTIONAL)  . . 26

      COUNT III (REGISTRATION PROCESS IS UNCONSTITUTIONAL) . 29

      COUNT IV (LICENSE PROCEDURES ARE UNCONSTITUTIONAL) . . 30

      COUNT V (THE AECA AND ITAR ARE VAGUE)  . . . . . . . . 32

      COUNT VI (THE AECA AND ITAR ARE OVERBROAD) . . . . . . 36

      COUNT VII (CONTENT RESTRICTIONS/SUBSEQUENT PUNISHMENT) 41

      COUNT VIII (RIGHT TO RECEIVE/FREEDOM OF ASSOCIATION) . 43

      COUNT IX (FIRST AMENDMENT EQUAL PROTECTION/
        VIEWPOINT-DISCRIMINATION)  . . . . . . . . . . . . . 44

      COUNT X (ADMINISTRATIVE PROCEDURES ACT)  . . . . . . . 46

Plaintiff is informed and believes and thereon alleges as follows:

A.  INTRODUCTION
    1.  Plaintiff brings this action to have declared and adjudged
unconstitutional, and to enjoin the enforcement of, certain statutes and
regulations of the United States, and policies, practices and conduct of
Defendants, described below, which prohibit Plaintiff from publishing or
publicly discussing or circulating a scientific paper, algorithm or
computer program in the field of mathematics commonly known as cryptology.
    2.  At issue in this case are:  Chapter 39, Section III,  of the Arms
Export Control Act of 1976 ("AECA"), 22 U.S.C. 2778 et. seq., including 22
U.S.C. 2780, and the regulations promulgated under their authority and
which implement them, known as the International Traffic in Arms
Regulations ("ITAR"), 22 C.F.R. Para. 120 et seq.
    3.  Chapter 39 of the AECA and the ITAR are unconstitutional both on
their face and as applied to Plaintiff's desired and intended conduct of
publishing a scientific paper, algorithm or computer program.  The statute
and regulations at issue are defective, among other reasons, because they
are susceptible to being applied, and in fact have been applied, to prevent
and inhibit speech protected by the First Amendment and because they vest
unfettered discretion in officials without adequate procedural safeguards
as required by the Fifth Amendment.
    4.  This is also an action to redress the deprivation under color of
statute, regulations, custom and usage of rights, privileges and immunities
secured to Plaintiff by the Constitution of United States, namely, the
right to exercise freedom of speech under the First Amendment and the right
to procedural due process under the Fifth Amendment.
    5.  This is also an action pursuant to the Administrative Procedures
Act, 5 U.S.C. 551 et seq., to challenge improper agency action of an
agency of the United States.

B.  JURISDICTION
    6.  The jurisdiction of this Court over the subject matter of this
action is predicated on 28 U.S.C. 1331 in that this claim arises under the
Constitution and laws of the United States.
    7.  This action is authorized by 28 U.S.C. 2201-2202, and 5 U.S.C.
701-706.  Plaintiff is suffering violations of his constitutional rights
because of the final agency action by the Defendants promulgating,
enforcing and interpreting the ITAR and is aggrieved by such action.  This
is a case of actual controversy which requires a declaration with respect
to the invalidity of the said regulations as alleged in this Complaint.

C.  VENUE
     8.  Plaintiff resides in this judicial district and venue is proper
in this district pursuant to 28 U.S.C. 1391(e), in that the causes of
action alleged involve agencies, officers and employees of the United
States acting under color of legal authority and concern challenged action
of an administrative agency of the United States.

D.  PARTIES
    9.  At all times relevant to this action, Plaintiff DANIEL J.
BERNSTEIN ("MR. BERNSTEIN") was and is an individual residing in Alameda
County, California.  MR. BERNSTEIN is a graduate student in mathematics at
the University of California at Berkeley and is the author of the Items.
    10.  At all times relevant to this action, Defendant UNITED STATES
DEPARTMENT OF STATE was and is an agency of the government of the UNITED
STATES.  The DEPARTMENT OF STATE was and is delegated to promulgate and
administer regulations under the AECA pursuant to Executive Order 11958 as
amended (42 C.F.R. 4311).
    11.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
ARMS CONTROL & DISARMAMENT AGENCY was and is an agency of the government of
the UNITED STATES and was and is delegated to coordinate with the Defendant
STATE DEPARTMENT in promulgating and administering regulations under the
AECA pursuant to 22 U.S.C. 2778(2).
    12.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
DEPARTMENT OF DEFENSE was and is an agency of the government of the UNITED
STATES and was and is delegated to coordinate and concur with and in fact
does coordinate and concur with the Defendant STATE DEPARTMENT in
promulgating and administering regulations under the Arms Export Control
Act 28 U.S.C. 2778(7) and ITAR 120.2.
    13.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
U.S. DEPARTMENT OF COMMERCE was and is an agency of the government of the
UNITED STATES and was and is delegated to coordinate and concur with and in
fact does coordinate and concur with the Defendant STATE DEPARTMENT in
promulgating and administering regulations under the Arms Export Control
Act.
    14.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
NATIONAL SECURITY AGENCY was and is an agency of the government of the
UNITED STATES and was and is delegated to coordinate and concur with and in
fact does coordinate and concur with the Defendant STATE DEPARTMENT in
promulgating and administering regulations under the Arms Export Control
Act.
    15.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that Defendant WARREN
CHRISTOPHER was and is the United States Secretary of State.  By virtue of
that office, Defendant CHRISTOPHER is responsible to oversee the
promulgation and administration of the above-mentioned regulations.
    16.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that Defendant
WILLIAM B. PERRY was and is the United States Secretary of Defense.  By
virtue of that office, Defendant PERRY is responsible to oversee the
promulgation and administration of the above-mentioned regulations.
    17.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that Defendant RONALD
BROWN was and is the United States Secretary of Commerce.  By virtue of
that office, Defendant BROWN is responsible to oversee the promulgation and
administration of the above-mentioned regulations.
    18.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that Defendant
ADMIRAL J. M. McCONNELL was and is the head of the NATIONAL SECURITY
AGENCY.  By virtue of that office, Defendant McCONNELL is responsible to
oversee the promulgation and administration of the above-mentioned
regulations.
    19.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that Defendant JOHN
D. HOLUM was and is the Director of the Arms Control and Disarmament
Agency.  By virtue of that office, Defendant HOLUM is responsible to
oversee the promulgation and administration of the above-mentioned
regulations.
    20.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
WILLIAM G. ROBINSON served as Director of the Office of Defense Trade
Controls of the Bureau of Politico-Military Affairs within the STATE
DEPARTMENT and was one of the persons responsible for interpreting,
applying and administering the ITAR regulations as applied to Plaintiff.
    21.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
CHARLES RAY served in the Office of Defense Trade Controls of the Bureau of
Politico-Military Affairs within the STATE DEPARTMENT and was one of the
persons responsible for interpreting, applying and administering the ITAR
regulations as applied to Plaintiff.
    22.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
GARY M. ONCALE served in the Office of Defense Trade Controls of the Bureau
of Politico-Military Affairs within the STATE DEPARTMENT and was one of the
persons responsible for interpreting, applying and administering the ITAR
regulations as applied to Plaintiff.
    23.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
MICHAEL NEWLIN served as Acting Director of the Center for Defense Trade of
the STATE DEPARTMENT and was one of the persons responsible for
interpreting, applying and administering the ITAR regulations as applied to
Plaintiff.
    24.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
GREG STARK served as an official of the NATIONAL SECURITY AGENCY and was
one of the persons responsible for interpreting, applying and administering
the ITAR regulations as applied to Plaintiff.
    25.  At all times relevant to this action, Plaintiff is informed and
believes and upon such information and belief alleges that the Defendant
MARK KORO served as an official of the NATIONAL SECURITY AGENCY and was one
of the persons responsible for interpreting, applying and administering the
ITAR regulations as applied to Plaintiff.

         (1) Individual Defendants Allegations
    26.  Each individual Defendant is sued individually and in his
official capacity.  Relief is sought against each Defendant as well as his
agents, assistants, successors, employees, attorneys, and all persons
acting in concert or cooperation with them or at their direction or under
their control.
    27.  The individual Defendants have been, are presently, and will be
acting under the color of authority and law of the United States of
America.  All of the individual Defendants are and will be at all times
relevant in this complaint engaged in the enforcement and execution of the
laws of the United States of America and more particularly 22 U.S.C. 2751
et. seq. and the regulations promulgated thereunder, under which Plaintiff
is threatened with prosecution.  The individual Defendants are responsible
for the enforcement and execution of these statutes and regulations
generally in the United States against the Plaintiff and others similarly
situated.
    28.  The individual Defendants, under color of authority and law of
the United States of America, purposefully have caused or permitted the
Plaintiff to be subjected to the deprivation of rights, privileges and
immunities secured to them by the Constitution and laws of the United
States.  Actions or threatened actions by the individual Defendants are
outside the scope of their authority and contrary to law.
    29.  The true names and capacities, whether individual, corporate,
associate or otherwise, of Defendants named herein as DOES ONE through ONE
HUNDRED inclusive, and each of them, are unknown to Plaintiff who therefore
sues said Defendants by such fictitious names.  For example, during the
course of discovery Plaintiff may discover that other agencies and
individuals were involved in interpreting, administering and applying the
statute and regulations in question.  When the true names and capacities of
said Defendants are ascertained, Plaintiff will amend this Complaint by
inserting the true names and capacities in place of the fictitious names,
pursuant to Federal Rule of Civil Procedure 19.
    30.  Plaintiff is informed and believes and upon such information and
belief alleges that DOES ONE through ONE HUNDRED, inclusive, and each of
them, are legally responsible in some manner for the events and happenings
referred to herein, and proximately caused or contributed to the harm
hereinafter alleged by Plaintiff.  Wherever in this Complaint any Defendant
is the subject of any charging allegation by Plaintiff, it shall be deemed
that the Defendants DOES ONE through ONE HUNDRED, inclusive, and each of
them, are likewise the subject of said charging allegation.
    31.  Plaintiff is informed and believes and upon such information and
belief alleges that at all times herein mentioned, each of the Defendants
was a partner, joint venturer, agent, servant, and/or employee of each of
the remaining Defendants and was, in the doing of things herein complained
of, acting within the course and scope of such partnership, joint venture,
agency, service and/or employment and therefore is liable to Plaintiff as
hereinafter alleged.

E.  REGULATORY CONTEXT
    32.  The Arms Export Control Act of 1976, 22 U.S.C. 2778
et seq. ("AECA") authorizes the President "to control the import and the
export of the defense articles and defense services" 22 U.S.C. 2778(a)(1).
    33.  Pursuant to the AECA, the Defendants have promulgated the
International Traffic in Arms Regulations ("ITAR") 22 C.F.R. 120-130. ITAR
Section 121.1 lists "defense articles" to be controlled under the AECA and
ITAR, and is called the United State Munitions List.
    34.  In addition to the "defense articles" specifically included on
the Munitions List, ITAR 120.9(1) and (2) define "defense services" as (1)
"[T]he furnishing of assistance (including training) to foreign persons"
with respect to a "defense article," and (2) "[t]he furnishing to foreign
persons of any technical data controlled under this subchapter, whether in
the U.S. or abroad."
    35.  ITAR 127.1(a)(1) states: "It is unlawful to export or attempt to
export from the United States any defense article or technical data or to
furnish any defense service for which a license or written approval is
required by this subchapter without first obtaining the required license or
written approval from the Office of Defense Trade Controls."
    36.  The regulatory ITAR scheme on its face and as applied
to Plaintiff, requires that Plaintiff and similarly situated
others submit to four prior restraints as follows:
    37.  First, ITAR 120.4 requires that where speech is
involved, the speaker submit a request to see if a license is
required.  This is called a Commodity Jurisdiction Request ("CJ
Request").
    38.  Second, if the agency reviewing the CJ Request
determines that a license is required, a person must register
with Defendants as an arms dealer under AECA 2778(b)(1)(A) and
ITAR 122.1.
    39.  Third, if his or her registration is approved, the
person must then apply for and obtain a license from
Defendants.
    40.  Thereafter, the person must seek advance approval
from Defendant STATE DEPARTMENT (in consultation with the other
Defendant agencies), for each recipient of the speech pursuant
to ITAR 123.9.  This final requirement precludes any general
publication or public discussion of the licensed material,
since, under either, the publisher or speaker cannot know the
names and identities of all potential recipients of the
information.
    41.  Violation of the AECA or the ITAR is a criminal offense,
punishable by, among others, a fine of up to $1,000,000, imprisonment of up
to ten years, or both.  22 U.S.C. 2778(c) and ITAR 127.3.  A civil penalty
may also be imposed under ITAR 127.10.
    42.  ITAR 120.4(g) provides that an appeal of a CJ Request shall be
determined within "30 days of receipt of the appeal."
    43.  Encryption systems, software and algorithms are included as
"defense articles" on the Munitions List.  ITAR 121.1(XIII)(b)(1), entitled
"Auxiliary Military Equipment," includes "Cryptographic (including key
management) systems, equipment, assemblies, modules, integrated circuits,
components or software with the capability of maintaining secrecy or
confidentiality of information and information systems."
    44.  Cryptography and speech about cryptography are also included as
"defense services" because they "furnish assistance" with respect to
defense articles and also because they qualify as "technical data" because
they are "software directly related to" defense articles under ITAR
120.10(4).

             (1) Key ITAR Definitions
    45.  The ITAR 120.17 defines "export," in relevant part as follows:
"Disclosing (including oral or visual disclosure) or transferring technical
data to a foreign person, whether in the United States or abroad."  Thus,
publication in any form or any public discussion could result in "export"
as defined in the ITAR, since each inherently presents a situation in which
the speaker or publisher does not know all potential recipients of the
information and a recipient might be a foreign person.
    46.  "Foreign person" is defined at ITAR 120.16 as anyone who is not
a lawful permanent resident under 8 U.S.C. 1101(a)(20) or who is not a
"protected individual" under 8 U.S.C. 1324b(a)(3).  This section defines
"protected individual" to include U.S. citizens and certain lawfully
admitted aliens.
    47.  The ITAR 121.8(f) defines "software" as follows: "Software
includes but is not limited to the system functional design, logic flow,
algorithms, application programs, operating systems and support software
for design, implementation, test, operation, diagnosis and repair."

             (2) Public Domain Exception
    48.  The ITAR 125.1 does provide for an exclusion from the
procedures for "information in the public domain."  Plaintiff is
informed and believes that Defendants have interpreted and applied the
ITAR's 'public domain' exception such that cryptographic information can
never be placed into the 'public domain'.
    49.  In addition, information related to cryptography is
excluded from the public domain exception by ITAR XIII(k),
since cryptographic information has been interpreted by
defendants as included in the definition of a "defense service"
on the grounds that it could give "assistance" to or furnish
"technical data" to a foreign person with respect to a defense
article under ITAR 120.9.  In effect, any information which
defendants determine gives "assistance" to a foreign person
with respect to a defense article or which is information
"directly related to defense articles" cannot be subject to the
public domain exception.  Thus, publication or public
discussion of any such information is always prohibited under
the ITAR.
             (3) Scienter
    50.  22 U.S.C. 2778(c) provides for criminal penalties for those who
"willfully" violate the statute or regulations.
    51.  No such requirement of "willfulness" is included in AECA or ITAR
provisions which allow civil penalties.

             (4) Judicial Review
    52.  22 U.S.C. 2778(h) precludes judicial review of
executive designations of items as "defense articles and
defense services" by stating: "The designation by the President
(or by an official to whom the President's functions under
subsection (a) of this section have been duly delegated), in
regulations issued under this section, of items as defense
articles or defense services for purposes of this section shall
not be subject to judicial review."
    53.  ITAR 128.1 improperly purports to extend the
preclusion of judicial review to any review under the
Administrative Procedures Act, stating:  "The administration of
the Arms Export Control Act is a foreign affairs function and
is thus encompassed within the meaning of the military and
foreign affairs exclusion of the Administrative Procedure Act
and is thereby expressly exempt from various provisions of that
Act.  Because the exercising of the foreign affairs function,
including the decisions required to implement the Arms Export
Control Act, is highly discretionary, it is excluded from
review under the Administrative Procedure Act."


 (5) ITAR's Purported Policy For Designating And
    Determining Defense Articles And Services

    54.  ITAR 120.3 provides that "[A]n article or service may
be designated or determined in the future to be a defense
article or defense service if it
         (a)  Is specifically designed, developed, configured,
                     adapted, or modified for a military application,
                     and
              (i)  Does not have predominant civil
                     applications, and
              (ii) Does not have performance equivalent
                     (defined by form, fit and function) to those of
                     an article or service used for civil
                     applications; or
         (b)  Is specifically designed, developed, configured,
                     adapted, or modified for a military application,
                     and has significant military or intelligence
                     capability such that control under this
                     subchapter is necessary."

F.  FACTS
    55.  Plaintiff is a graduate student in mathematics at the University
of California at Berkeley.  Entirely on his own, he has developed 1) an
algorithm; 2) a mathematical paper called "The Snuffle Encryption System"
which describes and explains this algorithm; and 3) a computer program
called Snuffle 5.0 which implements the algorithm (hereinafter collectively
referred to as the "Items").  He wishes to publish the Items in a variety
of media.  Filed herewith under seal as Exhibit "A1" are true and correct
copies of the Items.
    56.  MR. BERNSTEIN's work in creating the Items was and is
unconnected with any foreign enterprise or any project classified by the
U.S. Government.
    57.  The purpose and function of the algorithm are to turn existing,
separate, data authentication programs, known as hash functions, into
programs which may be used to encrypt messages.  Since the mathematical and
computer programming techniques for allowing authentication of data are the
same as those used to encrypt, the algorithm is quite simple.  Data
authentication programs are exempt from the ITAR regulations under
121.1(XIII)(b)(1)(vi).
    58.  The Items were and are not designed, developed, configured,
adapted or modified for military applications.  They have predominant civil
applications such as protection of privacy and prevention of fraud and have
performance equivalents to articles and services used for civil
applications.
    59.  Plaintiff intends general publication of the Items,  including
but not limited to the following:  a) the print medium, b) electronic
international networks and c) electronic newsgroups.  Plaintiff also wishes
to discuss the Items at mathematical conferences and open public meetings
of interested academics, business people and lay persons.
    60.  Plaintiff wishes to publish the Items and discuss their contents
in order to disseminate his ideas and information about cryptography to
other mathematicians and to business and lay persons interested in his
ideas.  Such activity is part of the normal process of academic and
scientific exchange of ideas and information.

         (1) CJ 191-92
    61.  On or about June 30, 1992, Plaintiff submitted a CJ Request to
Defendant STATE DEPARTMENT to determine whether publication of 1) the paper
entitled "The Snuffle Encryption System," 2) source code for the encryption
portion of Snuffle, and 3) source code for the decryption portion of
Snuffle
required a license under the ITAR.  Filed under seal herewith as Exhibit
"A" is a true and correct copy of the cover letter accompanying CJ 191-92.
    62.  Plaintiff is informed and believes and based upon such
information and belief alleges that his request, labelled CJ 191-92 by the
Defendant STATE DEPARTMENT, was referred to, among others, Defendants MARK
KORO and GREG STARK acting under color of authority of Defendant NATIONAL
SECURITY AGENCY for determination of whether a license was required prior
to publication of the Items.
    63.  On or about August 20, 1992, Defendant WILLIAM G. ROBINSON,
acting under color of authority of Defendant STATE DEPARTMENT, informed
Plaintiff that he would need a license in order to publish the items
included in CJ 191-92.  Attached hereto as Exhibit "B" is a true and
correct copy of Defendant ROBINSON's letter to Plaintiff.
    64.  After receiving Defendants response to CJ 191-92, Plaintiff
tried repeatedly to discuss the matter with persons at Defendant STATE
DEPARTMENT and Defendant NATIONAL SECURITY AGENCY and to clarify their
interpretation and application of the ITAR both by telephone and letter.
Defendants refused to respond to those attempts.
    65.  On or about September 22, 1993, Plaintiff appealed the decision
of Defendant ROBINSON and Defendant STATE DEPARTMENT in CJ 191-92.
Attached hereto as Exhibit "C" is a true and correct copy of Plaintiff's
appeal.
    66.  As of the date of this Complaint, over one year later,
Defendants have failed to respond to Plaintiff's appeal, despite the fact
that ITAR 120.4(g) requires a determination of such appeals within 30 days.

         (2) Plaintiff Attempts to Separate the
             Scientific Paper From the Computer Program

    67.  On or about July 15, 1993, Plaintiff submitted five (5) separate
CJ Requests to Defendant STATE DEPARTMENT reflecting his algorithm.  These
were 1) a scientific paper entitled "The Snuffle Encryption System"; 2)
source code for the encryption component of Snuffle; 3) source code for the
decryption component of Snuffle; 4) a description of how to encrypt using
Snuffle; 5) instructions for programming a computer to use Snuffle.  Filed
herewith as Exhibit "D" are true and correct copies of the cover letters
accompanying Plaintiff's five separate requests.  Filed herewith under seal
as Exhibit "D1" is a true and correct copy of the contents of Plaintiff's
five separate requests.
    68.  Plaintiff's purpose in dividing the Items into separate requests
was to give the Defendants the opportunity to separately consider the
Items, especially the Scientific Paper, in order to determine if they could
be published separately.     69.  On or about October 5, 1993,
Defendant WILLIAM G. ROBINSON, acting under color of authority of
Defendants and each of them, consolidated Plaintiff's five requests into
one called CJ 214-93, and informed Plaintiff that he would need a license
to publish them.  Attached hereto as Exhibit "E" is a true and correct copy
of Defendant ROBINSON's letter to Plaintiff.
    70.  Because of the similar nature of CJ 214-93 to CJ 191-92, and the
apparent futility of appeal, Plaintiff has not separately appealed CJ 214-93.

G.  RESULT OF DEFENDANTS' REJECTION OF PLAINTIFF'S CJ REQUEST
    71.  Plaintiff's scientific paper, algorithm and computer program are
speech protected by the First Amendment to the United States Constitution.
Thus, by rejecting Plaintiff's CJ Request, Defendants have determined that
these items are "defense articles or defense services" which may not be
exported without submitting to the above-described prior restraints.  Since
Defendants define "export" to include disclosing or transferring cryptology
to a foreign person anywhere in the world, including within the United
States, Plaintiff is informed and believes and therefore alleges that he is
required by law to obtain a license to publish or publicly discuss any of
the Items whether within or outside the United States.
    72.  Plaintiff is presently unable to publish his scientific paper,
algorithm or computer program within or outside the United States.  The
only reason preventing publication is the threat of prosecution for an
illegal export if he does so without a license.
    73.  To this date, Plaintiff has not received a response to his
appeal or a license to publish his paper, algorithm, or computer program
and as a result, he has not published the Items.

H.  CHILLING EFFECT ON PLAINTIFF
    74.  Plaintiff has written other scientific papers, algorithms and
computer programs in the mathematical field of cryptology which he wishes
to publish, and the only reason he has not published such papers is because
of the Defendants' threatened application and enforcement of the statute
and regulations at issue in this case.
    75.  As a direct or indirect consequence of Defendants' official
representations that scientific papers such as Plaintiff's must be licensed
prior to publication and the conduct of Defendants, Plaintiff has become
apprehensive about publishing and exchanging information and ideas about
cryptography.
    76.  As a result of Defendants' conduct, Plaintiff has refrained and
will continue to refrain from publishing his scientific paper and other
scientific papers, for fear of incurring civil and criminal liability.

I.  CHILLING EFFECT ON OTHERS
    77.  Plaintiff is informed and believes, and therefore alleges, that
for the same reasons, other persons similarly situated have become
apprehensive about publishing and exchanging information and ideas about
cryptography.
    78.  The statutes, regulations, policies and conduct of Defendants
cause a chilling effect on the exercise of First Amendment rights to speak,
to publish, to engage in academic inquiry and study and to receive items
from Plaintiff and other persons similarly situated, preventing important
matters of concern to mathematicians, scientists, the commercial community,
and the public from being openly discussed.
    79.  The same chilling effect on these First Amendment rights will
result from Defendants' official representations that scientific papers
such as Plaintiff's must be licensed prior to publication and from
Defendants' official denials of an export license even though the threat of
criminal and civil prosecution is never carried out or ultimately fails.
Persons who wish to publish are deterred from publishing because they do
not wish to endure the inconvenience of requesting a license to publish,
and because they do not wish to risk civil or criminal liability.
    80.  Unless restrained from doing so, Defendants will continue to
violate the First Amendment rights of Plaintiff and other persons similarly
situated to publish Items on a variety of subjects, including cryptology.

J.  CRYPTOLOGY IS A CURRENT ISSUE OF PUBLIC DEBATE
    81.  Cryptology is a subject of great public policy debate today.
During the past several years there have been many government initiatives
relating to cryptology.  Cryptology is a matter of both scientific and
political interest to the public, and there is a public interest in the
dissemination of information about cryptology, especially as commercial and
private use of computer networks grows.
    82.  Several government initiatives about cryptology and the scope of
the export restrictions as currently applied by Defendants are currently
being debated in the public arena and in Congress.  For instance, the
debate over the so-called Clipper Chip or Key Escrow Encryption initiative
includes many issues about cryptology.  In addition, Congress has recently
considered legislation which would eliminate many of the export
restrictions on cryptologic items, such as the Plaintiff's scientific
paper, algorithm and computer program at issue in this case.
    83.  As noted above, Plaintiff's scientific paper, algorithm and
computer program adapt existing exportable authentication technology in
order to allow encryption.  They were designed to point out the futility of
attempting to decontrol authentication while continuing to control
cryptography, by showing how the techniques for doing both are largely the
same so that authentication algorithms and computer programs can be easily
transformed to perform encryption tasks.  As such, the Items are political
speech in that they point out weaknesses and senselessness in the laws and
regulations.
    84.  Plaintiff's scientific paper, algorithm and computer program,
and the other similar items he plans or wishes to publish, are, therefore,
political speech entitled to the highest degree of protection under the
First Amendment to the Constitution of the United States.

               GENERAL ALLEGATIONS
    85.  As to each of the following counts, Plaintiff alleges the need
for injunctive and declaratory relief, damages and the need for a Temporary
Restraining Order, a Preliminary Injunction and a Permanent Injunction, as
follows:
    86.  An actual controversy has arisen and now exists between
Plaintiff and Defendants concerning the constitutional validity of the Arms
Export Control Act and the regulations which have been promulgated
thereunder, as well as the application of the statute and regulations by
Defendants.
    87.  A judicial declaration is necessary and appropriate at this time
under the circumstances in order that Plaintiff may ascertain and enforce
his rights and duties and also to prevent injustice and irreparable injury
to Plaintiff.
    88.  Plaintiff has already suffered damages from Defendants' conduct
in that he has been unable to advance his professional reputation and
career by publishing and discussing his work with his professional peers
and others.  Irreparable injury to Plaintiff's reputation and livelihood is
threatened by the conduct of Defendants and the continuation of this
unconstitutional regulation.
    89.  Every day that the statutes, regulations, policies and conduct
of Defendants remain unrestrained, irreparable injury is being done because
Plaintiff and other persons are deterred by fear of possible conviction
from fully and vigorously pursuing their rights, and although Plaintiff
would like to publish the Items, he is deterred by fear of criminal and
civil prosecution from so publishing.
    90.  Plaintiff has no adequate remedy at law for the injuries
currently being suffered and which are threatened, in that a mere award of
monetary damages many months from now will not recover his professional
reputation and career, and it will be impossible for Plaintiff to determine
the precise amount of damage that he will suffer if Defendants' conduct is
not restrained.
    91.  Injunctive and declaratory relief are the only forms of relief
which can adequately redress these harms and protect the aforesaid rights
of Plaintiff and other persons.  The harm already suffered by Plaintiff in
being unable to publish his paper, algorithm or computer program and the
deterrence to and the prevention of the free exercise of these rights
cannot be removed by successful defense to criminal prosecutions.
    92.  No injury will be sustained by the public or Defendants by the
issuance of a temporary restraining order, preliminary injunction, or
permanent injunction.

                     COUNT I
        (UNCONSTITUTIONAL PRIOR RESTRAINT)
    93.  Plaintiff realleges and incorporates herein by this reference
all of the Allegations contained in all of the previous paragraphs herein
as though the same were fully set forth in COUNT I.
    94.  The statutes and regulations, which operate as an administrative
licensing scheme applied to the publication of scientific papers,
algorithms or computer programs, constitute an impermissible prior
restraint on speech, in violation of the First Amendment to the
Constitution of the United States in the following particulars:
    95.  The statutes and regulations, as interpreted by Defendants,
require that a person who wishes to publish a paper, algorithm or computer
program related to cryptology, in any way, must first apply to the
Department of State, through its Commodity Jurisdiction procedure, to
determine whether a license is needed.
    96.  Second, the statutes and regulations, as interpreted by
Defendants, require a person who wishes to publish a scientific paper,
algorithm or computer program which may be deemed an item on the United
States Munitions List to register with the DEPARTMENT OF STATE.
    97.  Third, the statutes and regulations, as interpreted by
Defendants, require that if the scientific paper, algorithm or computer
program is in fact a "defense article or defense service", a person must
also obtain a license from Defendants.
    98.  Finally, the statutes and regulations, as interpreted by
Defendants, require a person to identify and seek approval from Defendants
for each foreign person recipient of the scientific paper, algorithm or
computer program.
    99.  As a direct result of the aforesaid acts and omissions of
Defendants, their agents and employees, acting in their official
capacities, under color of federal law, Plaintiff, and all other persons
wishing to publish scientific papers in the mathematical field of
cryptology, have been subjected to unlawful prior restraints depriving them
of their federal constitutional rights to speak, to publish, to assemble,
to receive information, and to engage in academic study, inquiry and
publication, guaranteed by the First Amendment to the Constitution of the
United States.
    100.  No adequate governmental justification exists for these prior
restraints.  The statutes and regulations impose requirements and
subsequent civil and criminal penalties grossly disproportionate to any
legitimate or  compelling governmental purpose and are not justified by a
proper governmental objective.  They are justified by neither a rational or
a compelling governmental interest, are not narrowly drawn to express any
such interest, and there is no grave, imminent or highly probable harm to
any such interest sufficient to justify the imposition of this prior
restraint.
    101.  The actions of Defendants, in whole and individually, in
denying Plaintiff his right to publish his scientific paper, algorithm or
computer program constitute a prior restraint of Plaintiff's First
Amendment right to speak, to publish, to associate and to engage in
academic inquiry and study.
    102.  As a result of the foregoing acts of Defendants', Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants as
hereinafter set forth.

                     COUNT II
     (CJ REQUEST PROCESS IS UNCONSTITUTIONAL)

    103.  Plaintiff realleges and incorporates herein by this reference
all of the allegations contained in all of the previous paragraphs herein
as though the same were fully set forth in COUNT II.
    104.  The statute and the regulations do not assure a prompt final
judicial decision reviewing any interim and possibly erroneous
determination that a license is required under the CJ Request procedure.
    105.  Plaintiff submitted a Commodity Jurisdiction request
to Defendants in order to determine whether a license would be
required in order to publish the Items.  This procedure is the
official means by which Defendants determine that items are
controlled by the ITAR.  Two months elapsed.  Plaintiff was
unable to publish his paper during the time his CJ Request was
pending, because if he published his paper, and Defendants then
determined that its publication was unlawful, he would have
been subject to criminal and civil liability.  As a result of
this delay, Plaintiff suffered harm.
    106.  By regulation, Defendants are required to "provide a
preliminary response within 10 working days of receipt of a complete
request for commodity jurisdiction.  If after 45 days the Office of Defense
Trade Controls has not provided a final commodity jurisdiction
determination, the applicant may request in writing to the Director, Center
of Defense Trade that this determination be given expedited processing."
ITAR 120.4(e).  By not setting or observing a reasonable deadline for final
determination of whether Plaintiff's Items were controlled, Defendants have
acted without observance of procedure of law.
    107.  In addition, the CJ process does not contain clear
administrative standards or place the burden on the government
to initiate judicial review within any specified period of
time.  The CJ Request process forces Plaintiff, and other
persons similarly situated, to delay publication while
Defendants decide whether items intended for publication are
"defense articles or defense services."
    108.  Furthermore, ITAR 128.1 precludes judicial review of
Defendants' determination of whether the prior restraints apply
to a paper intended for publication.  As such, the CJ process,
both on its face and as applied, constitutes an
unconstitutional prior restraint of Plaintiff's First Amendment
right to free speech since it precludes judicial review
entirely.
    109.  The statutes and regulations fail to provide any
procedural safeguards sufficient to allow a prior restraint of
Plaintiff's First Amendment right to speak, to publish, to
associate and to engage in academic inquiry and study.
    110.  The statutes and regulations do not contain narrowly
drawn, reasonable and definite standards for the administering
officials to follow, and give them unbridled discretion to
determine what articles and services are subject to licensing,
and whether licensing should be required.
    111.  The regulations do provide that the Defendants must
act on appeals within 30 days.  This regulation has not been
applied, however, in practice.  Here, for example, it has been
nearly one and one-half years since Plaintiff appealed CJ 191-92 and Defendants still have not acted.
    112.  The statutes and regulations do not provide that the
Defendants must either issue a license within a specified brief
period of time or to go to court to restrain publication, and
such undue delay results in unconstitutional suppression of
speech.
    113.  Under AECA, 22 U.S.C. 2778(h), Defendants'
determination that the Items are controlled under ITAR as items
"on the Munitions List" cannot be reviewed by a court.  Thus,
not only have Defendants not sought judicial review of their
decision that the Items are controlled and cannot be exported
without a license, and not only do the statute and regulations
lack any requirement that they seek judicial review of such
determination, Plaintiff is statutorily precluded from
challenging the decisions that the Items are controlled.  As a
result, this scheme is analogous to one where a licensing board
decides that a book or movie is obscene, and a court cannot
review whether the book or movie is obscene under the
Constitution.
    114.  As a result of the foregoing acts of Defendants,
Plaintiff is entitled to declaratory relief, injunctive relief,
damages, a temporary restraining order, a preliminary
injunction and a permanent injunction as detailed in the
General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants, and each
of them, as hereinafter set forth.

                    COUNT III
    (REGISTRATION PROCESS IS UNCONSTITUTIONAL)


    115.  Plaintiff realleges and incorporates herein by this reference
all of the allegations contained in all of the previous paragraphs herein
as though the same were fully set forth in COUNT III.
    116.  Once the CJ process is completed, Defendants also require the
Plaintiff to register as an arms dealer.
    117.  Defendants have contended that judicial actions in interpreting
and applying the procedures for registration as an arms dealer are
precluded by ITAR 128.1.  As such, the registration procedures, both on
their face and as applied, constitute an unconstitutional prior restraint
of Plaintiff's First Amendment right to free speech since they purport to
prohibit judicial review on any grounds.
    118.  Further, the statutes and regulations fail to provide any
procedural safeguards for registration as an arms dealer sufficient to
justify a prior restraint of Plaintiff's First Amendment right to speak, to
publish, to associate and to engage in academic inquiry and study.
    119.  The statutes and regulations do not contain narrowly drawn,
reasonable and definite standards for the administering officials to
follow, and give them unbridled discretion to determine whether an
applicant is allowed to register as an arms dealer.
    120.  The statutes and regulations do not provide that the Defendants
must act within a specified brief period of time.
    121.  The statutes and regulations do not provide that the Defendants
must either accept registration of an applicant as an arms dealer within a
specified brief period of time or to go to court to restrain publication,
and such undue delay results in unconstitutional suppression of speech.
    122.  The statute and the regulations do not assure a prompt final
judicial decision reviewing any interim and possibly erroneous denial of
registration as an arms dealer and Plaintiff is informed and believes and
upon such information and belief alleges that the process is entirely
administrative and not judicial and that the administrative review
decisions often take months.
    123.  As a result of the foregoing acts of Defendants, Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants, and each
of them, as hereinafter set forth.

                     COUNT IV

    (LICENSE PROCEDURES ARE UNCONSTITUTIONAL)

    124.  Plaintiff realleges and incorporates herein by this
reference all of the allegations contained in all of the
previous paragraphs herein as though the same were fully set
forth in COUNT IV.
    125.  Once a person has completed the CJ process and
registered as an arms dealer, he or she must seek a license and
advance approval for each recipient of the controlled Item or
service.
    126.  Furthermore, Defendants have contended that judicial
action in interpreting and applying the license procedures are
precluded by ITAR 128.1.  As such, the registration and license
procedures, both on their face and as applied, constitute an
unconstitutional prior restraint of Plaintiff's First Amendment
right to free speech since they purport to prohibit judicial
review on any grounds.
    127.  Further, the statutes and regulations fail to
provide any procedural safeguards sufficient to allow a prior
restraint of Plaintiff's First Amendment right to speak, to
publish, to associate and to engage in academic inquiry and
study.
    128.  The statutes and regulations do not contain narrowly
drawn, reasonable and definite standards for the administering
officials to follow, and give them unbridled discretion to
determine what papers are subject to licensing, and whether
licensing should be required.
    129.  The statutes and regulations do not provide that the
Defendants must act within a specified brief period of time.
    130.  The statutes and regulations do not provide that the
Defendants must either issue a license within a specified brief
period of time or to go to court to restrain publication, and
such undue delay results in unconstitutional suppression of
speech.
    131.  Plaintiff submitted his paper to Defendants and to
this date Defendants have neither declared that he needs no
license to publish, nor granted him a license to publish, nor
sought judicial review of the decision that he may not publish
without a license.
    132.  The statute and the regulations do not ensure a
prompt final judicial decision reviewing any interim and
possibly erroneous denial of a license and Plaintiff is
informed and believes and upon such information and belief
alleges that the process is entirely administrative and not
judicial and that the administrative review of decisions often
take months.
    133.  As a result of the foregoing acts of Defendants, Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants as
hereinafter set forth.

                     COUNT V
          (THE AECA AND ITAR ARE VAGUE)
    134.  Plaintiff realleges and incorporates herein by this reference
all of the allegations contained in all of the preceding paragraphs herein
as though the same were fully set forth in COUNT V.
    135.  The ITAR and AECA are vague in that they fail to give adequate
notice to people of ordinary intelligence concerning the conduct they
proscribe.  Accordingly, they fail to provide a fair warning to the
innocent, they are susceptible to arbitrary and discriminatory enforcement
and they operate to inhibit the exercise of First Amendment freedoms by
creating a chilling effect on constitutionally protected speech.
Specifically, the ITAR and AECA are vague in the following particulars,
among others:
    136.  The ITAR are vague in that they define "Category
XIII-Auxiliary Military Equipment" to include any "software
with the capability of maintaining secrecy or confidentiality
of information or information systems."  As technical
proficiency and computer processing power continue to grow,
this standard also constantly changes.  What was capable of
maintaining secrecy ten years ago is certainly not capable of
doing the same now.  Thus, a reasonable person, whether
creating or using scientific papers, algorithms or computer
programs, cannot know at any point in time whether Defendants
consider the material "capable of maintaining secrecy."
    137.  ITAR 120.10(5) is vague in that the definition of
"technical data" exempts "information concerning general
scientific mathematical or engineering principles commonly
taught in schools, colleges and universities or information in
the public domain as defined in section 120.11."  Since
reasonable minds can differ widely on the definition of what
are "principles commonly taught," and since such teaching can
vary widely from institution to institution as well as from
year to year, the definition of what must be subject to the
prior restraints described above is in a constant state of
uncertainty and flux.
    138.  ITAR is vague in that 120.10 purports to exempt from
the definition of technical data the information described
above, yet Defendants have applied this regulation in such a
way as to require licensing for virtually all scientific
papers, algorithms and computer programs related to cryptology,
despite the fact that they are also "information concerning
general scientific, mathematical or engineering principles
commonly taught in schools, colleges and universities."
    139.  The ITAR 120.10(1) is vague in that the definition
of "technical data" does not include "software", something that
a person of ordinary intelligence would assume under the plain
meaning of that term.
    140.  The ITAR are vague in that they purport to
differentiate between "encryption" items and "authentication"
items, a distinction which has no mathematical or computer
programming basis.  The techniques which allow authentication
are the same as those which, when rudimentarily adapted such as
Plaintiff has done here, allow encryption.  Thus, a reasonable
person cannot know whether what he or she developed for one
purpose will be used or will be considered by Defendants to be
used for another cryptologic purpose.
    141.  ITAR 120.11 is vague as to time in that it states:
"[P]ublic domain means information which is published and which
is generally accessible or available to the public."  A
reasonable person cannot know what it means to say that
something "is published" or how to place something into the
public domain.  In fact, Plaintiff is informed and believes
that Defendants have interpreted this to mean that no
information which is not already in the public domain can be
placed in the public domain.
    142.  The ITAR are vague in that Regulation 121.8(f)
defines software as follows: "Software includes but is not
limited to the system functional design, logic flow,
algorithms, application programs, operating systems and support
software for design, implementation, test, operation, diagnosis
and repair."  Defendants have possibly interpreted this to
include scientific papers such as Plaintiff's.  Thus, the
definition of "software," as applied by Defendants, is vague in
that a reasonable person cannot know if his speech, regardless
of its form, is included in Defendants definition of
"software."
    143.  The AECA 2778(c) is vague in that it requires "willful"
violations of the statutes and regulations for criminal penalties but since
a person of reasonable intelligence cannot determine what the statute and
regulations cover, the question of whether a violation was "willful" is
also vague.
    144.  The AECA 2778(e) and ITAR are vague in that civil penalties
apparently can be imposed absent willful conduct, but a person of
reasonable intelligence cannot determine whether an item is on the
Munitions List and therefore controlled or whether an action constitutes an
"export" within the meaning of the ITAR and AECA.
    145.  As a direct result of, among others,  the aforesaid acts and
omissions of Defendants, their agents and employees, acting in their
official capacities, under color of federal law, Plaintiff, and all other
persons wishing to publish scientific papers in the mathematical field of
cryptology, have been subjected to vague regulations which deprive them of
their federal constitutional rights to speech, to publish, to assemble, to
receive information, and to engage in academic study, inquiry and
publication, guaranteed by the First Amendment to the Constitution of the
United States.
    146.  No adequate governmental justification exists for this prior
restraint.  The statutes and regulations impose vague requirements and
subsequent civil and criminal penalties grossly disproportionate to any
legitimate or  compelling governmental purpose and are not justified by an
proper governmental objective.  They are justified by neither a rational or
a compelling governmental interest, are not narrowly drawn to express any
such interest, and there is no grave, imminent or highly probable harm to
any such interest sufficient to justify such vague regulations.
    147.  As a result of the foregoing acts of Defendants, Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction, and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants as
hereinafter set forth.

                     COUNT VI

        (THE AECA AND ITAR ARE OVERBROAD)

    148.  Plaintiff realleges and incorporates herein by this reference
all of the allegations contained in all of the previous paragraphs herein
as though the same were fully set forth in COUNT VI.
    149.  The AECA and ITAR are overbroad, both on their face
and as applied by Defendants in that they are not carefully
drawn or authoritatively construed to punish only unprotected
speech and are susceptible of application to protected
expression in the following particulars, among others:
    150.  The ITAR are overbroad in that ITAR 120.3(a) and (b)
state that the Policy on Designating and Determining Defense
Articles and Services is to include only those which are
"specifically designed, developed, configured, adapted, or
modified for a military application" yet it has been applied to
prohibit export of Plaintiff's Items.
    151.  The ITAR are overbroad in that ITAR 120.3(a)(i) and
(ii) state that items cannot be designated unless they do not
have predominant civil applications and do not have performance
equivalent to those of an article or service used for civil
applications, yet it has been applied to prohibit export of
Plaintiff's Items.
    152.  The ITAR 120.17 is unconstitutionally overbroad on
its face and/or as applied in that the definition of "export"
contained therein includes "Disclosing (including oral or
visual disclosure) or transferring technical data to a foreign
person, whether in the United States or abroad."  This
definition encompasses within its coverage activities which are
clearly protected by the guarantees of the First Amendment to
the Constitution of the United States since it prevents
Plaintiff from publishing a scientific paper, algorithm or
computer program in any media whatsoever, whether domestically
or abroad, on the grounds that it might have the effect of
disclosing the information contained therein to a foreign
person.
    153.  The definition of "export" is also overbroad in that
it prevents Plaintiff from discussing or revealing his ideas in
any public forum in the United States on the grounds that it
might have the effect of disclosing the information contained
therein to a foreign person.  In fact, Plaintiff is informed
and believes and upon such information and belief alleges that
Defendants have prevented persons from discussing or revealing
cryptologic ideas in public and scientific forums.
    154.  The ITAR are overbroad in that they require a person
to determine whether each potential recipient is not a "foreign
person" prior to sharing his ideas with them.
    155.  The ITAR are overbroad in that they have included
and applied "information" and "technical data" in a manner
which exceeds the reasonable or intended scope of the AECA,
which was created to control munitions.
    156.  The ITAR are overbroad in that the exclusion from
its licensing scheme of information in the public domain
includes only information "which is published and which is
generally accessible or available to the public" which phrase
has been applied by Defendants to exclude any information not
already published at the time of promulgation of the ITAR
regulations.  Thus, it creates a "Catch-22" situation, in which
Defendant CHARLES RAY under color of authority, has informed
Plaintiff in essence that his Scientific Paper could never be
placed in the public domain since it is not already in the
public domain.
    157.  The ITAR are overbroad as applied by Defendants in
that they have excluded all speech about cryptology from the
definition of information which could be in the "public
domain."
    158.  The ITAR are overbroad in that ITAR 121.1 defines
"Category XIII-Auxiliary Military Equipment" to include any
"software with the capability of maintaining secrecy or
confidentiality of information or information systems," thus
including a large amount of software and speech having
absolutely no military purpose or applications.
    159.  The ITAR are overbroad in that ITAR 121.8(f) defines
software as follows: "Software includes but is not limited to
the system functional design, logic flow, algorithms,
application programs, operating systems and support software
for design, implementation, test, operation, diagnosis and
repair."  This definition on its face and as applied by
Defendants encompasses within its coverage activities which are
clearly protected by the First Amendment to the Constitution
since it prevents Plaintiff and others from publishing on the
subject of cryptology on the grounds that they might reveal
"algorithms, system functional design or logic flows" as
interpreted by Defendants.
    160.  The Defendants have applied the ITAR in an overbroad
manner in that they have instructed Plaintiff that he must
secure a license before publishing his scientific paper,
algorithm or computer program despite clear evidence that he is
a hobbyist and graduate student and so not a "person who
engages in the United States in the business of either
manufacturing or exporting defense articles," pursuant to
regulation 122.1(a).  Thus, as applied to Plaintiff, all
persons must receive a license prior to export.
    161.  Plaintiff is informed and believes and upon such information
and belief alleges the ITAR is overbroad as applied by Defendants in that
Defendants have included software with no cryptography at all as requiring
a license on the grounds that it contains a documented interface which
could be used to insert a cryptographic software by someone at a later
date.  This has been described as "crypto with a hole".  Thus, even a
person who publishes entirely non-cryptographic software cannot know if
Defendants deem that his software (or algorithms or scientific papers
relating to the software) are subject to the statutes and regulations.
    162.  As a direct result of the aforesaid acts and omissions of
Defendants, their agents and employees, acting in their official
capacities, under color of federal law, Plaintiff, and all other persons
wishing to publish in the mathematical field of cryptology, have been
subjected to overbroad regulations which deprive them of their federal
constitutional rights to speak, to publish, to assemble, to receive
information, and to engage in academic study, inquiry and publication,
guaranteed by the First Amendment to the Constitution of the United States.
    163.  No adequate governmental justification exists for these
overbroad prior restraints.  The statutes and regulations impose overbroad
requirements and subsequent civil and criminal penalties grossly
disproportionate to any legitimate or  compelling governmental purpose and
are not justified by a proper governmental objective.  They are justified
by neither a rational or a compelling governmental interest, are not
narrowly drawn to express any such interest, and there is no grave,
imminent or highly probable harm to any such interest sufficient to justify
such overbroad regulations.
    164.  As a result of the foregoing acts of Defendants, Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants
as hereinafter set forth.

                    COUNT VII

   (CONTENT RESTRICTION/SUBSEQUENT PUNISHMENT)

    165.  Plaintiff realleges and incorporates herein by this reference
all of the allegations contained in all of the previous paragraphs herein
as though the same were fully set forth in COUNT VII.
    166.  Plaintiff seeks to publish a mathematical paper in the field of
cryptology.  He is a graduate student in mathematics at UC-Berkeley and
publication of mathematical papers such as this one is likely to advance
his career.  Plaintiff has published other mathematical papers.
    167.  Plaintiff has been informed by Defendants that he may not
publish his paper about cryptology without an export license.  Defendants
define an "export" to include disclosing or transferring cryptology or
speech directly related to cryptography to a foreign person anywhere in the
world, including within the United States.  Thus, general publication or
public discussion of cryptology within the United States constitutes
"export" as defined by Defendants and a license is required.  If
publication is made or public discussion occurs without a license Plaintiff
will be subject to civil and criminal liability.
    168.  Defendants' requirement of a license prior to publishing or
publicly discussing the Items is an attempt to regulate speech on the basis
of its content, since speech about cryptology is specifically targeted.
    169.  The statutes, regulations and policies of Defendants which make
it illegal for Plaintiff to publish or publicly discuss the Items without
an export license are unconstitutional, both on their face and as applied
to Plaintiff, in that they deprive Plaintiff of his First Amendment rights
of academic freedom and of freedom of speech, including his right to
receive information from persons who cannot publish information because it
is subject to export controls or who do not publish information because
they fear it may be subject to export controls.
    170.  As a result of the foregoing acts of Defendants, Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants
as hereinafter set forth.

                    COUNT VIII

    (RIGHT TO RECEIVE/FREEDOM OF ASSOCIATION)

    171.  Plaintiff realleges and incorporates herein by this reference
all of the allegations contained in all of the preceding paragraphs herein
as though the same were fully set forth in COUNT VIII.
    172.  Because Defendants have denied Plaintiff a license to publish
or publicly discuss the Items, Plaintiff is unable to engage in open
exchange of information, including software and ideas, in the mathematical
and scientific community of which he is a part.
    173.  Defendants' denial of a license to publish or publicly discuss
the Items impermissibly infringes on Plaintiff's First Amendment right of
academic freedom, which includes the right to engage in study and inquiry
and to publish and discuss the results of such study and inquiry.
    174.  Plaintiff is informed and believes, and therefore alleges, that
there are persons whom he does not personally know who wish to read and
discuss Plaintiff's paper, algorithm or computer program.  Such persons
include U.S. citizens, mathematicians and others both in and outside the
United States.
    175.  Plaintiff is informed and believes, and alleges, that there are
persons whom he does not personally know and who are foreign persons but
reside in the United States, who wish to read and discuss Plaintiff's
paper, algorithm or computer program.  Defendants' denial of a license to
publish Plaintiff's paper, algorithm or computer program is an attempt to
regulate Plaintiff's speech on the basis of citizenship and nationality of
the recipients, and to regulate the information received by persons based
on their citizenship and nationality.
    176.  The statutes, regulations and policies of Defendants which make
it illegal for Plaintiff to publish or publicly discuss his paper,
algorithm or computer program without an export license are
unconstitutional, both on their face and as applied, in that they deprive
Plaintiff of his freedom of association and also deprive these other
persons wishing to hear Plaintiff's speech, especially non-foreign persons,
of freedom of association as well as their First Amendment right to receive
information on scientific and political issues.  They also violate the
right to equal protection under the First and Fifth Amendment of these
other persons, by restricting the speech they may hear on the basis of
their citizenship and nationality.
    177.  As a result of the foregoing acts of Defendants, Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants
as hereinafter set forth.

                     COUNT IX

(FIRST AMENDMENT EQUAL PROTECTION/VIEWPOINT-DISCRIMINATION)

    178.  Plaintiff realleges and incorporates herein by this reference
all of the allegations contained in all of the previous paragraphs herein
as though the same were fully set forth in COUNT IX.
         179.  ITAR 121.8(f) states that those who intend "to export
software only should, unless it is specifically enumerated in 121.1 (e.g.,
XIII(b)), apply for a technical data license pursuant to 125 of this
chapter."  Category XIII(b) refers to cryptology.  Thus, the ITAR treats
cryptographic software differently from other software, since it is not
treated as "technical data."
         180.  In addition, the "public domain" exemption at 120.11
applies only to "information."  Plaintiff is informed and believes that
Defendants have interpreted "information" to exclude cryptographic
information, relying on 120.11(1), which states that "information, other
than software as defined in 120.10(d)" is included as technical data.
Thus, under Defendants' definitions, cryptographic information can never be
included in the public domain even though all other kinds of information
can be in the public domain and can be exported without a license.
    181.  Plaintiff is informed and believes, and therefore alleges, that
the statutes, regulations, policies and conduct of Defendants are unduly
arbitrary and capricious, and impermissibly infringe on Plaintiff's right
to equal protection of the laws in violation of the First and Fifth
Amendments to the Constitution, in that speech about a particular subject,
cryptology, is stringently controlled and is not given the same treatment
as other types of expression.
    182.  Plaintiff is informed and believes, and therefore alleges, that
the statutes, regulations, policies and conduct of Defendants, which place
special restrictions on speech about cryptology, serve the unlawful purpose
of depriving him and other persons of their freedoms of speech, press,
association, inquiry and study with regard to the particular mathematical
subject of cryptology, because the Defendants have their own viewpoint
about the political and social value of cryptology which they seek to
further by restricting others' speech about cryptology, and that any legal
action under these statutes, regulations and policies would be carried on
without any hope of ultimate success but with the basic purpose and effect
of intimidating and harassing them from disseminating and exchanging
information about cryptology.  Such a censorial purpose, which
discriminates in favor of government viewpoints about a subject of
political and social interest, impermissibly infringes on the First
Amendment rights of Plaintiff and other persons who wish to speak freely
and exchange ideas and information about cryptology.
    183.  As a result of the foregoing acts of Defendants, Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants
as hereinafter set forth.

                     COUNT X
         (ADMINISTRATIVE PROCEDURES ACT)
    184.  Plaintiff realleges and incorporates herein by this reference
all of the allegations contained in all of the previous paragraphs herein
as though the same were fully set forth in COUNT X.
    185.  Plaintiff seeks to publish a scientific paper containing an
algorithm and a computer program in the mathematical field of cryptology.
The actions of Defendants, including their inaction in granting him a
license to publish, constitute unlawful agency action and Plaintiff is
adversely affected and aggrieved by these actions.
    186.  Agency action in deciding Plaintiff's appeal has been
unlawfully withheld or unreasonably delayed under 5 U.S.C. 706(l) in that
he appealed Defendant's decision on September 22, 1993 and to date, no
response has been received, despite the fact that ITAR 120.4(g) requires
determination of an appeal within 30 days.
    187.  By statute, Defendants only have the authority to regulate the
export of arms.  Plaintiff's desired publication is not an export of arms,
because publication is not an "export", and the Items are not "arms."
Defendants' actions in promulgating vague and overbroad regulations which
have been and are being applied to Plaintiff, and which can be applied to
anyone wishing to publish a scientific paper, constitute agency action,
both as applied and on its face, in excess of statutory jurisdiction,
authority, or limitations.
    188.  By regulation, Defendants are required to "provide a
preliminary response within 10 working days of receipt of a complete
request for commodity jurisdiction.  If after 45 days the Office of Defense
Trade Controls has not provided a final commodity jurisdiction
determination, the applicant may request in writing to the Director, Center
of Defense Trade that this determination be given expedited processing."
ITAR 120.4(e).  By not setting or observing a reasonable time period for
determination of whether Plaintiff's Items were controlled, Defendants have
acted without observance of procedure of law.
    189.  The foregoing actions of Defendants, are arbitrary, capricious,
constitute an abuse of discretion and are otherwise not in accordance with
law under 5 U.S.C. 706(2)(A) and so should be held unlawful and set aside.
    190.  The foregoing actions of Defendants are contrary to Plaintiff's
constitutional rights under 5 U.S.C. 706(2)(B) and so should be held
unlawful and set aside.
    191.  Furthermore, under the Constitution, both the First Amendment
and the Fifth Amendment require that Defendants make a determination as to
Plaintiff's desired publication within a brief and specified period of time
or initiate judicial review to restrain publication.  By preventing
Plaintiff from publishing his paper, Defendants' actions, findings and
conclusions are contrary to constitutional right, power, privilege or
immunity.
    192.  The foregoing actions of Defendants are in excess of their
statutory jurisdiction, authority or limitations, in, among others:
         a)   the Defendants have applied these provisions to the Items
              despite the fact that they were not specifically
              designed, developed, configured, adapted or modified for
              a military operation and do have predominant civil
              applications and have performance equivalents used for
              civil applications as required in ITAR 120.3.
         b)   the Defendants have applied these provisions to Plaintiff
              despite the fact that he is a hobbyist and academic
              mathematician and so does not "engage in the business" of
              manufacturing, exporting or importing "defense articles
              or defense services" as required by AECA 2778(b)(1)(A)
         c)   the Defendants have promulgated ITAR 128.1 and
              represented to Plaintiff and others that the
              administration of the AECA "is excluded from review under
              the APA" despite the fact that the AECA 2778(h) excludes
              "only the designating...  in the regulations of items as
              defense articles or defense services from judicial
              review," and does not preclude all review.
         d)   Plaintiff is informed and believes and based upon such
              information and belief alleges that Defendant STATE
              DEPARTMENT has unlawfully delegated authority to make
              final decisions as to cryptographic items, papers, and
              other information to Defendant National Security Agency,
              that there is no basis in law for such delegation, and
              that Defendants' actions are in excess of statutory
              jurisdiction, authority, or limitations.
         e)   the Defendants have defined the term "export" in the ITAR
              regulations in a manner which far exceeds any reasonable
              or intended use of the term as used in the AECA.
         f)   the Defendants have included and applied the terms
              "information" and "technical data" in the ITAR in a
              manner which exceeds the reasonable or intended scope of
              the AECA, which was created to control munitions.
    193.  Plaintiff is informed and believes and based upon such
information and belief alleges that Defendant STATE DEPARTMENT has failed
to coordinate with the Arms Control & Disarmament Agency in making
decisions on issuing export licenses as required under 22 U.S.C. 2778(2).
    194.  All of the foregoing acts of Defendants were done without
observance of procedure required by law in that by regulations, "State,
Defense and Commerce will resolve commodity jurisdiction disputes in
accordance with established procedures."  ITAR 120.4(f).  Plaintiff is
informed and believes, and therefore alleges, that such procedures are not
published.  Plaintiff further alleges that such procedures for obtaining a
decision under ITAR 120.4 are required to be published in the Federal
Register as required by 5 U.S.C. 552(a)(1) or made available to the public
as required by 5 U.S.C. 552(a)(2).  By not publishing these procedures,
Defendants have acted without observance of procedure by law, and no
person, including Plaintiff, may be adversely affected by these unpublished
procedures.
    195.  Plaintiff is informed and believes and based upon such
information and belief alleges that Defendants' actions and inactions in
not permitting him to publish his paper are unwarranted by the facts and
should be set aside.
    196.  The actions and inaction of Defendant constitute final agency
actions for which there is no other adequate remedy.  Plaintiff is
adversely affected or aggrieved by such actions and inaction because, under
Defendants' interpretation of the law, he must have license to publish his
paper and Defendants have not granted him such a license.  Although
Plaintiff has the right to appeal Defendants' denial of a license to
publish his paper, that denial is effective because he cannot publish until
he has a license, and the agency action is therefore presently operative.
5 U.S.C. 704.
    197.  As a result of the foregoing acts of Defendants, Plaintiff is
entitled to declaratory relief, injunctive relief, damages, a temporary
restraining order, a preliminary injunction and a permanent injunction as
detailed in the General Allegations above.
    WHEREFORE, Plaintiff prays for judgment against Defendants, and each
of them, as set forth below:
         1.   For a Declaration of this Court:
              a.   declaring that the statutes, regulations, policies,
                   practices and conduct complained of herein are in
                   violation of the First and Fifth Amendments to the
                   Constitution of the United States and the
                   Administrative Procedures Act on their face and so
                   are null and void;
              b.   declaring that the statutes, regulations, policies,
                   practices and conduct complained of herein are in
                   violation of the First and Fifth Amendments to the
                   Constitution of the United States and the
                   Administrative Procedures Act and so are null and
                   void as applied to Plaintiff's desired conduct of
                   publishing the Items and any other scientific
                   paper, algorithm or computer program;
         2.   For a Temporary Restraining Order, a Preliminary
Injunction, and  a Permanent Injunction, all enjoining Defendants, and each
of them, as well as those persons or entities acting on their behalf, and
all persons acting in concert or participating with them, from prosecuting
or penalizing Plaintiff for publishing his scientific paper, algorithm or
computer program, and specifically,
              a.   preliminarily and permanently enjoining Defendants
                   from doing or causing to be done any of the
                   following acts:
                   1)  further and future enforcement, operation or
                   execution of the statutes, regulations, policies,
                   practices and conduct complained of herein, with
                   respect to scientific papers, algorithms or
                   computer programs through criminal prosecution,
                   civil penalties or in any other way;
                   2)  threatening, detaining, prosecuting,
                   penalizing, discouraging, or otherwise interfering
                   with Plaintiff and any other person in the exercise
                   of their federal constitutional rights.
              b.   granting expedited docket treatment to bring this
                   case to trial at the earliest possible time.
         3.   For the recovery of damages in a sum to be proved at
trial;
         4.   For attorneys fees incurred herein;
         5.   For costs of suit incurred herein; and
         6.   For such other and further relief as the Court deems just
and proper.

Dated: _______________       McGLASHAN & SARRAIL
                             Professional Corporation

                                                                                    By______________________________
         CINDY A. COHN
         Attorneys for Plaintiff
         DANIEL J. BERNSTEIN