CINDY A. COHN, ESQ.; SBN 145997
McGLASHAN & SARRAIL
Professional Corporation
177 Bovet Road, Sixth Floor
San Mateo, California 94402
Telephone (415) 341-2585
Facsimile (415) 341-1395
LEE TIEN, ESQ.; SBN 148216
1452 Curtis Street
Berkeley, CA 94702
Tel: (510) 525-0817
M. EDWARD ROSS, ESQ.; SBN 173048
STEEFEL, LEVITT & WEISS
A Professional Corporation
One Embarcadero Center, 30th Floor
San Francisco, CA 94111
Tel: (415) 788-0900
JAMES WHEATON, ESQ.; SBN 115230
ELIZABETH PRITZKER, ESQ.; SBN 146267
FIRST AMENDMENT PROJECT
1736 Franklin, 8th Floor
Oakland, CA 94612
Tel: (510) 208-7744
Attorneys for Plaintiff
DANIEL J. BERNSTEIN
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
DANIEL J. BERNSTEIN, an individual, ) Case No. C 95-0582 MHP
)
Plaintiff, )
) DECLARATION OF
) CINDY A. COHN, ESQ., IN
v. ) OPPOSITION TO DEFENDANTS'
) MOTION FOR SUMMARY
UNITED STATES DEPARTMENT OF ) JUDGMENT
STATE, et. al., ) F.R.C.P. 56(f)
)
Defendants. )
________________________________________)
I, CINDY A. COHN, declare as follows:
1. I am attorney at law associated with the law firm of McGlashan
& Sarrail, Professional Corporation, am duly admitted to practice law in
the State of California and the Northern District of California, and am
one of Plaintiff's attorneys of record in the current case. I have
personal knowledge of the facts set forth herein, unless otherwise
indicated, and if called as a witness could and would so testify. I have
handled this case since its inception.
2. Discovery has been on hold in this matter since its inception
pursuant to Court Order.
3. Plaintiff believes that his Motion for Partial Summary Judgment
can be granted without discovery. This Motion is based upon the lack of
procedural protections required by Freedman v. Maryland and its progeny,
overbreadth and vagueness.
4. Plaintiff also believes that discovery is not required for this
Court to determine that the Defendants have failed in their burden to
prove that to the extent that the ITAR Scheme licenses protected
expression, it meets the test of "direct, immediate and irreparable
damage" required under New York Times Co. v. United States, 403 U.S. 713,
730 (1971) (Stewart, J., with whom White, J. joins, concurring) ("Pentagon
Papers") and the strict srutiny required for subsequent punishment of
speech. Plaintiff further contends that the evidence submitted by
Defendants so far demonstrates that they cannot meet these heavy burdens.
5. Should this Court determine, however, that these tests could be
met by Defendants here or that other tests apply, Plaintiff should be
allowed to conduct discovery in order to more fully respond to the factual
assertions relied upon by Defendants in their Motion for Summary Judgment.
I believe that discovery into these assertions will reveal genuine issues
of material fact which preclude summary judgment for Defendants. This
Declaration will note each such assertion and then explain the discovery
necessary to address each.
6. Plaintiff recognizes that in order to respond to the factual
assertions made by Defendants, he may have to seek discovery of
information which may adversely impact the confidentiality of third
parties, their trade secrets, or Defendants' national security concerns.
Plaintiff is willing to discuss appropriate protective orders.
Defendants' Factual Assertions and Necessary Discovery to Respond.
7. Defendants assert that, despite the fact that 121.8(f) defines
"software" as "including but not limited to system functional design,
logic flows, algorithms . . . " Defendants do not, in practice, extend
ITAR Scheme licensing requirements over anything but computer source code.
Defendants specifically and repeatedly state that they do not license
algorithms. Defendants' Brief at 31:8-25.
8. The facts of Plaintiff's own interaction with Defendants belie
this assertion. In order to respond to it further, however, Plaintiff
will need to review Defendants' actions in response to others who have
sought to publish algorithms and other items defined as "software" which
are not source code. This discovery will include propounding document
requests to discover such requests, as well as all documents evidencing
Defendants' decision making process and the disposition of each request.
Since the NRC considered this issue, Plaintiffs will also seek all
information given to or utilized by them in the course of their study of
this question.
9. Plaintiff will also need to depose those who now implement and
in the past have implemented the ITAR Scheme, as discussed further in
Paragraph 33 of this Declaration.
10. Plaintiff believes that review of Defendants' files and the
depositions of Defendants' personnel will reveal others whose speech has
been restricted or chilled by the ITAR Scheme. Plaintiff will also use
the subpena power of discovery to obtain documents from and depose such
persons, to further investigate the truth of Defendants' claims here.
11. Defendants claim that the exemptions to the ITAR Scheme
definition of technical data have resulted in a situation in which
academic and scientific publication is not burdened by the ITAR Scheme.
Plaintiff has presented five declarations, from Mr. Miller, Professor
Junger, Professor Bishop, Dr. Blaze, and himself, each of which
demonstrates that the ITAR has in fact burdened academic publication. He
has further presented Declarations from Mr. Schneier, Mr. Demberger, Mr.
Zimmermann, and Mr. Johnson demonstrating that the ITAR Scheme has
burdened the development of the science of cryptography. In order to
present further evidence to refute Defendants' claims, Plaintiff will need
to review Defendants' records of all documents concerning such requests to
Defendants and depose those persons who have sought to publish their ideas
about cryptography for academic or scientific purposes about their
interaction with Defendants under the ITAR Scheme.
12. Plaintiff will also need to utilize the subpena authority of
discovery to find further information from additional persons or entities
who have sought to publish their ideas about cryptography for academic or
scientific purposes. Some persons and entities, including the
Massachusetts Institute of Technology, have indicated that they have such
information, but, due to their ongoing interactions with Defendants, are
unwilling to present it to this court unless they are subpoenaed.
13. Defendants have declared that the information sought to be
exported under the ITAR Scheme is "typically classified by the government,
or legally controlled pursuant to a defense contract, or privileged and
proprietary commercial information," in support of their argument that the
ITAR Scheme is applied consistent with the Edler case. Defendants' Brief
at 11:13-16.
14. Plaintiff will need to propound written discovery and take the
depositions of those who process such requests under the ITAR Scheme to
learn whether this assertion of what information is "typically" sought to
be exported is true. The answer to this question will assist in the
evaluation of whether Defendants have met their burden to prove that
Defendants do comply with the requirements of Edler and that as applied
the ITAR Scheme is narrowly tailored.
15. Defendants have declared that "Most requestors seeking to
export technical data come to the State Department for a license because
the information at issue is proprietary or classified, and because they
seek to export it specifically in connection with the provision of a
defense service or to assist a foreign entity in obtaining or maintaining
a defense article. Defendants' Brief at 11:16-20; 33:17-19.
16. Plaintiff will need to propound written discovery and take the
depositions of those Government officials who process such requests under
the ITAR Scheme to learn whether this assertion of why "most requestors"
seek ITAR licenses. The answer to this question will assist in the
evaluation of whether Defendants have met their burden to prove that the
ITAR Scheme is narrowly tailored as applied.
17. Defendants have declared that the uncontrolled world-wide
availability of cryptographic software "exposes to harm the government's
national security and foreign policy interests in gathering intelligence
abroad". Defendants' Motion at 18:2-4; 24:3-12.
18. Plaintiff will need to propound both written and oral
discovery both to Government officials who can describe this "exposure to
harm," and officials both inside and outside government who have stated
that this assertion is either not true, or not nearly as important as the
government here proposes, a fact which goes to the strength of the
government interest here, and to whether "direct, immediate and
irreparable damage" will result from the failure to continue this
licensing scheme.
19. For example, Plaintiff is also informed and believes that
Defendant National Security Agency has stated in written response to
questions by the Senate Subcommittee on Technology and the Law at hearings
held on or about May 3, 1994 that "Encryption software distribution via
Internet, bulletin board, or modem does not undermine the effectiveness of
encryption export controls." Discovery will ascertain whether NSA in fact
made such statement to Congress and will uncover the factual premises
underlying this statement. The evidence discovered will support the
conclusion that Defendants' extension of the ITAR Scheme to prevent the
publishing of cryptographic software on the Internet, such as Plaintiff
and Mr. Demberger seek to do here, is not supported by a strong government
interest and further to demonstrate that the regulations are not properly
tailored to fit the goals of the statute.
20. As another example, Plaintiff will seek the various
Congressional and Presidential studies of the ITAR which have been
undertaken, which Plaintiff believes have concluded the same thing.
21. In addition, Plaintiff will use the subpena power of discovery
to gain written documentation and oral testimony from non-parties that the
ITAR Scheme has a significant impact on the privacy and security of purely
domestic communication to further demonstrate the lack of proper
tailoring. As in the case of academia, Plaintiff has been informed that
several non-parties, who are unwilling to give declarations on this issue,
will give such evidence if subpoenaed .
22. Defendants assert that "controls on the export of
cryptographic software do not preclude individuals from otherwise
publishing or discussing scientific ideas related to cryptography and
cryptographic algorithms. As noted above, a broad academic discourse
exists concerning cryptologic theories." Defendants Brief at 24:13-15.
This assertion is supported by Mr. Crowell's Declaration and several
exhibits.
23. Plaintiff has already presented some evidence to refute this
assertion as noted in paragraph 11. Plaintiff will use the subpena power
of discovery, in the same ways as noted in paragraphs 10-12 above, to
strengthen this point through written documentation and oral testimony.
24. Defendants' assert that "the regulation of the plaintiff's
source code would not have 'a substantial deleterious effect,' on the
ability of persons to disseminate information about cryptography, and
would 'leave open ample alternative channels of communication' (citations
omitted). Defendants' Brief at 24:19-22.
25. Plaintiff has already presented some evidence as noted in
paragraph 11 that the ITAR Scheme does have a substantial deleterious
effect on the growth of the science of cryptography and that the
censorship of source code as a mode of explaining and testing certain
ideas is important to the science. Plaintiff will use the subpena power
of discovery locate further admissible evidence in support of these points
through written documentation and oral testimony in the same ways as noted
in paragraphs 10-12 above.
26. For example, Defendants have indicated in the Karn litigation
that, in response to a recent CJ Request, they are "reevaluating" their
informal policy of not regulating books containing source code. Plaintiff
would seek all information on this CJ and the apparent "reevaluation".
Plaintiff is informed and believes that the individual who submitted this
CJ, Philip Zimmerman, will consent to the Defendants' release of
information related to it.
27. Defendants' assert that "encryption products that do not
function to maintain the 'secrecy and confidentiality of data' are not
encompassed by Category XIII(b)". Defendants' Brief at 24:24-25.
28. Plaintiff has already presented some evidence, namely the
Declaration of Brian Behlendorf, that the Defendants have applied the ITAR
Scheme to software which does not maintain the "secrecy and
confidentiality of data". Plaintiff is aware of other such instances, but
the persons involved are unwilling to speak unless they are subject to
subpena due to the ongoing nature of their interactions with Defendants.
Plaintiff will use the subpena power of discovery to locate other
admissible evidence to strengthen this point through written documentation
and oral testimony, both from Government officials who implement the ITAR
Scheme and from third parties who are affected by it.
29. Defendants assert that "many academics in Dr. Bernstein's
field freely publish scientific information on cryptographic theories and
algorithms and attend symposia. Defendants' Brief at 33:15-18.
30. As noted above in paragraph 11, 23 and 25, Plaintiff has
already presented some evidence that the ITAR Scheme does have a
substantial deleterious effect on the growth of the science of
cryptography and that the censorship of source code as a mode of
explaining and testing certain ideas is important to the science.
Plaintiff will use the subpena power of discovery to locate additional
admissible evidence to strengthen this point through written documentation
and oral testimony in the same ways as noted in paragraphs 10-12 above.
31. Defendants have asserted that "it is noteworthy that technical
data for which export licenses are sought normally has not been placed
into the public domain by the exporter." Defendants' Brief at 11:12-13.
It is supported by the Declaration of Lowell, but no other evidence.
32. This assertion is a bit confusing and perhaps irrelevant,
since the issue in this case is not technical data which "has been placed'
into the public domain, but technical data which the author wishes to
place into the public domain. To the extent that this assertion is relied
upon by Defendants in support of their arguments here, however, both
written discovery and depositions will be required in order to investigate
whether it is true.
33. Anticipated Discovery.
a. Depositions.
i. Plaintiff anticipates deposing the following defendants
within 120 days, or as soon thereafter as is reasonably
possible, or as ordered by the Court. Plaintiff further
anticipates that their testimony at deposition will be
substantially different in content from each other so as
to allow Plaintiff to ascertain a full and complete
picture of these individual Defendants' involvement in
implementing and administering the scheme of regulation.
(1) Mark Koro, National Security Agency. Mr. Koro's
exact duty title is unknown. It is anticipated that
Mr. Koro will provide evidence of Defendants'
implementation and administration of ITAR.
(2) Greg Stark, National Security Agency. Mr. Stark's
exact duty title is unknown. It is anticipated that
Mr. Stark will provide additional testimony similar
to that of Mr. Koro. However, since the exact nature
of Mr. Stark's and Mr. Koro's positions in the
National Security Agency, and their working
relationships, if any, are unknown, Plaintiff
anticipates discovery of that information either by
deposition, production of documents, interrogatory,
or disclosure by Defendants.
(3) Gary Oncale, Major, USAF, Bureau of Politico-
Military Affairs, Office of Defense Trade Controls,
Department of State. It is anticipated that Major
Oncale will provide evidence of Defendants'
implementation and administration of ITAR.
(4) Michael Newlin, Acting Director, Defense Trade,
Department of State. It is anticipated that Mr.
Newlin will provide evidence of defendant's
implementation and administration of ITAR.
(5) Charles Ray, Bureau of Politico-Military Affairs,
Office of Defense Trade Controls, Department of State.
It is anticipated that Mr. Ray will provide evidence
of defendant's implementation and administration of
ITAR.
(6) William B. Robinson, Director, Bureau of Politico-
Military Affairs, Office of Defense Trade Controls,
Department of State. It is anticipated that Mr.
Robinson will provide evidence of defendant's
implementation and administration of ITAR.
ii. Plaintiff further anticipates deposing "DOE" defendants
ascertained during the above mentioned depositions, or
through other discovery, as soon thereafter as is reasonably
possible, or as ordered by the Court.
iii. Plaintiff further anticipates deposing, both orally
and through the business records subpena power, known
third-party witnesses, including, but not limited to:
(1) Former and current employees of the Department
of State and the NSA in order to determine the
intended and applied scope of the ITAR regulations,
including:
(a) William J. Lowell, whose Declaration
supports Defendants' Motion for Summary
Judgment and who authored letters to
Plaintiff, Mr. Miller and others.
(b) William Crowell, whose Declaration
supports Defendants' Motion for Summary
Judgment.
(c) Martha Harris, who authored letters to
Mr. Karn.
(d) Mary Sweeney, who authored letters to
Mr. Demberger.
(e) John Sonderman, who corresponded to
Mr. Miller.
(f) All those involved in the investigation
and attempted indictment of Philip Zimmerman.
(g) All employees directly involved in the
incidents described in the Declarations
involving Mr. Miller, Mr. Junger, Mr. Johnson,
Mr. Behlendorf, Mr. Karn and Mr. Demberger.
(2) Persons in addition to Plaintiff and the current
Declarants who have been prevented from communicating
about cryptography as a result of the regulations,
including those prevented from speaking about it at
academic conferences and on on-line discussion groups;
(3) Persons who have been chilled in their
communications about cryptography out of fear of
the regulations, including those who wish to
speak about it in academic classrooms and at
academic conferences;
(4) Persons who wish to communicate about
cryptography but who have found that the
regulations are drafted such that a person of
ordinary intelligence cannot determine what is
restricted and what is not;
(5) Persons who can testify as to the effectiveness
of the regulations in meeting Defendants' stated
goals. For instance, persons will testify as to
whether the regulations prevent foreign governments
or citizens from using or obtaining strong
cryptography;
(6) Persons who can testify about the ongoing
public debate about cryptography;
(7) Persons who can testify as to the political
value to them of Plaintiff's speech in the ongoing
public debate about cryptography;
(8) Persons who can testify about the effect of the
regulations on the availability of U.S. companies
to compete in the world-wide market of cryptographic
products.
iv. Depositions of Unknown Witnesses
Plaintiff further anticipates deposing as yet unknown
witnesses ascertained during the above mentioned
depositions, or through other discovery, on the issues
mentioned above and others raised during the course of
discovery, as soon thereafter as is reasonably possible,
or as ordered by the Court.
v. Demands for Production.
Plaintiff anticipates serving Demands for Production of
Documents on Defendant as soon as the Court authorizes
the parties to proceed with discovery. Plaintiff
anticipates the documents requested will show, among others
(1) The internal regulations, procedures and
directives used by Defendants to implement and
administer the ITAR Scheme;
(2) The actual implementation of the ITAR Scheme
in practice;
(3) Defendants testimony at Congressional hearings
about the ITAR, including testimony directly contrary
to the positions which Defendants have taken in this
case;
(4) Documents which provide factual support, if
any exists, for Defendants assertions that their
regulation of the communication of information
about cryptography is necessary to further their
stated goals.
vi. Interrogatories.
Plaintiff anticipates serving Interrogatories on Defendants
as soon as the Court authorizes the parties to proceed
with discovery. Plaintiff anticipates the interrogatories
will allow Plaintiff to discover, among others, how
Defendants use their internal regulations, procedures and
directives to implement and administer the ITAR;
vii. Expert Witnesses.
Plaintiff reserves the right to designate expert witnesses
who will testify about the issues described above.
34. I believe that the information outlined above will raise
genuine issues of material fact and therefore, if Defendants' Motion for
Summary Judgment should be denied.
I declare under penalty of perjury that the foregoing is true and
correct.
Executed at San Mateo, California on _____________________, 1996.
_____________________________
CINDY A. COHN, ESQ.
Attorney for Plaintiff