CINDY A. COHN, ESQ.; SBN 145997
McGLASHAN & SARRAIL
Professional Corporation
177 Bovet Road, Sixth Floor
San Mateo, CA 94402
Tel: (415) 341-2585
Fax: (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; SBN 115230
ELIZABETH PRITZKER; SBN 146267
FIRST AMENDMENT PROJECT
1736 Franklin, 8th Floor
Oakland, CA 94612
Tel: (510) 208-7744

Attorneys for Plaintiff
Daniel J. Bernstein

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

DANIEL J. BERNSTEIN )
) C 95-00582 MHP
Plaintiff, )
) PLAINTIFF'S NOTICE OF MOTION AND
v. ) MOTION FOR PARTIAL SUMMARY
) JUDGMENT AND/OR SUMMARY ) ADJUDICATION OF ISSUES
UNITED STATES DEPARTMENT OF ) F. R. C. P. 56
STATE et al., )
) Date: September 20, 1996 ) Time: 12:00 p.m.
Defendants. ) Judge: Honorable Marilyn Hall Patel
)
)

TO DEFENDANTS AND THEIR ATTORNEY OF RECORD:
NOTICE IS HEREBY GIVEN that on September 20, 1996, at 12:00 p.m.., or as soon thereafter as counsel may be heard by the above-entitled court, located at 450 Golden Gate Avenue, San Francisco, CA 94102, Plaintiff Daniel J. Bernstein will and hereby does move this court as follows:
1. For summary adjudication about the appropriate legal tests to be applied to the Arms Export Control Act and International Traffic and Arms Regulations ("ITAR Scheme") to the extent it controls protected expression about the science of cryptography. Plaintiff argues,
a) As to the prior restraints, the ITAR Scheme must pass the test provided in New York Times Co. v. United States 403 U.S. 713 (1971).
b) As to the application of the ITAR Scheme as subsequent punishment for speech about cryptography, Plaintiff submits that the tests of strict scrutiny apply.
2. This motion also seeks partial summary judgment that there is no genuine issue of material fact that the ITAR Scheme, to the extent it reaches protected expression about the science of cryptography, fails three standards of First Amendment jurisprudence:
a) It lacks procedural safeguards required by Freeman v. Maryland 380 U.S. 51 (1965),
b) It is vague, and
c) It is overbroad.
3. This motion is based upon this Notice of Motion and Motion, the accompanying
1. PLAINTIFF'S NOTICE OF MOTION FOR PARTIAL SUMMARY

JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES;
2. MEMORANDUM OF POINTS AND AUTHORITIES;
3. DECLARATION OF DANIEL J. BERNSTEIN,
4. DECLARATION OF HAROLD ABELSON,
5. DECLARATION OF ANDREW W. APPEL,
6. DECLARATION OF MATTHEW BISHOP,
7. DECLARATION OF BRIAN BEHLENDORF,
8. DECLARATION OF JAMES T. DEMBERGER,
9. DECLARATION OF CARL M. ELLISON,
10. DECLARATION OF DR. PAUL GINSPARG,
11. DECLARATION OF MICHAEL PAUL JOHNSON,
12. DECLARATION OF LAWRENCE MILLER,
13. DECLARATION OF PETER JUNGER,
14. DECLARATION OF BRUCE SCHNEIER,
15. DECLARATION OF RICHARD M. STALLMAN,
16. DECLARATION OF PHILIP R. ZIMMERMANN and
17. DECLARATION OF LEE TIEN
filed herewith, all pleadings and papers on file in this action, and upon such other and further matters as may be presented to the court at the time of the hearing.
Dated: _______________ McGLASHAN & SARRAIL
Professional Corporation

By________________________
CINDY A. COHN
Attorneys for Plaintiff