LEE TIEN, ESQ.; SBN 148216
1452 Curtis Street
Berkeley, CA 94702
Tel: (510) 525-0817

Attorneys for Plaintiff
Daniel J. Bernstein

DANIEL J. BERNSTEIN )
) C 95-00582 MHP
Plaintiff, )
) DECLARATION OF
v. ) LEE TIEN
) )
UNITED STATES DEPARTMENT OF )
STATE et al., ) )
Defendants. )
)
)

I, LEE TIEN, declare as follows:
1. I am an attorney duly admitted to practice law in the State of California and the Northern District of California. I have personal knowledge of the facts set forth herein, unless otherwise indicated, and if called as a witness could and would so testify.
2. On or about December 28, 1993, I filed Freedom of Information Act ("FOIA") requests under 5 U.S.C. § 552 to agencies of the U.S. government. These requests, made on behalf of a client, sought access to agency records concerning export controls on cryptography. This matter is currently in litigation in the Northern District of California. No. C95-1098-FMS.
3. One such request was made to the U.S. Department of Justice. On or
about February 9, 1994, in response to that request, I received from Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, the "Memorandum for Davis R. Robinson, Legal Adviser, Department of State, Re: Revised Proposed International Traffic in Arms Regulations (ITAR)," dated July 5, 1984 ("1984 ITAR Memorandum"), with attachments (collectively, the "Source Document").
4. The two attachments are: the "Memorandum for Dr. Frank Press, Science Adviser to the President, Re: Constitutionality Under the First Amendment of ITAR Restrictions on Public Cryptography," dated May 11, 1978 ; and the "Constitutionality of Proposed Revisions of the Export Administration Regulations: Memorandum for the Director [Henry D. Mitman], Capital Goods Production Materials Division, Department of
Commerce," dated July 28, 1981. The latter memorandum is published at 5 Op. Off. Legal Counsel 230 (1981).
5. I assert that attached hereto as Exhibit A to this Declaration is a true and correct copy of the Source Document, except that the copy is date-stamped.
6. I also received in the same mailing from Mr. Shiffrin the document entitled "Constitutionality of the Proposed Revision of the International Traffic in Arms Regulations: Memorandum Opinion for the Office of Munitions Control, Department of State," dated July 1, 1981, which is referenced in the 1984 ITAR Memorandum as "Memorandum for William B.
Robinson, Office of Munitions Control, Department of State, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel (July 1, 1981) ("1981 ITAR Memorandum"). This document is published at 5. Op. Off. Legal Counsel 202 (1981).
7. I assert that attached hereto as Exhibit B to this Declaration is a true and correct copy of the 1981 ITAR Memorandum, except that the copy is date-stamped.
8. I also received in the same mailing from Mr. Shiffrin the document "ITAR Controls Over Public Cryptography: Legislative History of § 38 of The Arms Export Control Act," dated June 20, 1978, by Kathryn Fuller of the Office of Legal Counsel ("Fuller Memo"). Attached hereto as Exhibit C is a true and correct copy of the Fuller Memo. I further received the untitled letter from Larry A. Hammond, Deputy Assistant Attorney General, Office of Legal Counsel, to Col. Wayne Kay of the Office of Science and Technology Policy, dated August 21, 1978 ("Hammond Letter"). Attached hereto as Exhibit D is a true and correct copy of the Hammond Letter.
9. Attached hereto as Exhibit E are true and correct excerpts from the recently released report of the National Research Council, Computer Science & Telecommunications Board Committee to Study National Cryptography Policy, entitled "Cryptography's Role in Securing the Information Society" (May 30, 1996, Prepublication copy) (hereinafter, "NRC Report"). This study was commissioned by the U. S Congress in November, 1993, pursuant to P. L. 103-160. I received this report from the National Research Council on or about June 1, 1996.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this Declaration was executed at _____________, California on this ______ day of July, 1996.
____________________________
LEE TIEN