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1995-06-11
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Date: Thu, 11 May 1995 12:01:20 -0700
From: Phil Karn <karn@unix.ka9q.ampr.org>
Subject: Bowshot to State Dept
April 28, 1995
Mr. Thomas E. McNamara
Assistant Secretary
Bureau of Political-Military Affairs
Room 7325A
Department of State
Washington, DC 20520
Dear Mr. McNamara:
On December 5, 1994, we wrote on behalf of our client, Mr. Philip
R. Karn, Jr. of San Diego, California, to appeal the adverse
determination by Deputy Assistant Secretary Martha C. Harris with
regard to Mr. Karn's appeal of an determination by the State
Department's Office of Defense Trade Controls ("ODTC") in CJ case
081-94. On February 28, 1995, we met with you and representatives of
the Department of Justice and the National Security Agency, to provide
additional information and explain our position. We have not heard
anything more about this appeal since that meeting.
All relevant facts are known to the Department and to the interested
agencies. While all of us recognize the importance of the issues
raised in this case, the issues are neither complex nor analytically
difficult. As you know, it has appeared to us and to other observers
that the licensing delays that Mr. Karn and others who seek licenses
relating to cryptographic materials have experienced fit a pattern of
procrastination by federal agencies which appears to be based on the
publicly stated policy of the National Security Agency to attempt to
deter the further spread of strong cryptography as much as they can,
notwithstanding the fact that the technology at stake is already
widely available, as documented in our appeal. In short, it continues
to appear that NSA is using the tactics of delay and
decision-avoidance in an effort to continue to chill the First
Amendment activities of Mr. Karn and others interested in
cryptography.
Mr. Karn has patiently attempted to comply with established procedures
throughout this matter. His initial request for a Commodity
Jurisdiction determination was filed on March 9, 1994, and was denied
by ODTC on May 12, 1994. That adverse decision was appealed to
Dr. Harris on June 7, 1994. Dr. Harris affirmed the adverse decision
on October 7, 1994. The issues involved had been pending before your
department since Mr. Karn filed his 1993 request for a commodity
jurisdiction determination on the book, Applied Cryptography. In
short, the Executive Branch has had the issue in this case before it
for over a year. We have repeatedly been assured that the matter is
receiving "high-level attention" and has generated significant
inter-agency discussion.
The continued delay in rendering a decision in this matter is
inexplicable except on the assumption that the Executive Branch
intends, by its inaction, to chill the activities of Mr. Karn and
others. As you know from our earlier submission, the chilling effects
of this system of prior restraints lies at the heart of the
constitutional difficulties of the ITAR regime that have been
previously identified by the Department of Justice.
Please be advised that while we would prefer to obtain a decision on
our appeal from your office, we will not continue to wait for an event
that apparently will not occur. Mr. Karn has requested that we seek
judicial review of this matter not later than June 15, 1995, whether
or not your decision has been issued. We will take such action,
unless, of course, you render a favorable decision before that time.
Cordially,
Kenneth C. Bass, III
Thomas J. Cooper
cc: Phil Karn
[end]