STUART M. GERSON Assistant Attorney General JOHN A. MENDEZ United States Attorney STEPHEN L. SCHIRLE Chief, Civil Division MARY BETH UITTI Assistant United States Attorney (415) 556-6181 ELIZABETH A. PUGH JOHN S. MARTIN Attorneys, Department of Justice Civil Division Room 1024 901 E Street N.W. Washington, D.C. 20530 (202)616-0179 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA John C. Gilmore, ) Plaintiff ) Civil Action No. C-92-3646 ) TEH vs . ) ) National Security ) Agency, ) Defendant. ) DEFENDANT'S STATUS CONFERENCE CERTIFICATE Pursuant to the Court's Order of September 4, 1992 and Local Rule 235-3, defendant submits the following summary of the status of the above captioned case. Defendant respectfully informs the Court that, although counsel for both sides have kept in close contact throughout this litigation and have discussed the issues which will arise, I counsel have not discussed all the matters described in Local Rule 235-3 for the specific purpose of filing this certificate. Counsel for the plaintiff, Lee Tien, is currently in Hawaii, and defendant is therefore submitting a separate certificate reflecting its position on the matters described in Local Rule 235-3. Counsel for the defendant will seek to confer with counsel for the plaintiff immediately upon the latter's return from Hawaii and will supplement this certificate as appropriate. As a result of a decision made on November 25, 1992, defendant's position has significantly changed since the last time counsel conferred at length. Defendant has notified counsel for the plaintiff of this change, but counsel have had an opportunity to discuss all of its ramifications for the case. (a) Service of Process on Parties Not Yet Served. Both defendant and the Attorney General, whom plaintiff has sought to add as a defendant in his amended complaint, have been served. Although the United States Attorney for the Northern District of California was served with the original complaint by mail, rather than in person as required by Rule 4(d)(4) of the Federal Rules of Civil Procedure, defendant does not intend to raise this improper service as a defense. (b) Jurisdiction and Venue. Defendant admitted to the existence of jurisdiction in its answer. Defendant lacks knowledge as to plaintiff's residence but does not intend to raise a defense of improper venue. (c) Claims. Defenses and Controverted Issues. Plaintiff's original complaint was filed pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. ¤ 552. Plaintiff sought certain treatises on cryptology, Parts III and IV of Military Cryptanalysis and Part III of Military Cryptanalytics, which are in the possession of defendant and used in connection with defendant's communications intelligence activities. Plaintiff's original complaint also alleged that defendant's policies for responding to FOIA requests are unlawful. Plaintiff has also filed a motion for leave to file an amended complaint. The amended complaint would add the Attorney General as a party and add a number of claims concerning the alleged unconstitutionality of 18 U.S.C. ¤798, a statute criminalizing the disclosure of certain classified information. The basis for these claims is that plaintiff is currently in possession of parts III and IV of Military Cryptanalysis. He claims that he obtained them from a library without knowledge that they were classified, and that he wants to show them to others. However, 18 U.S.C. ¤ 798 criminalizes the willful disclosure of classified information "concerning the communications intelligence activities of the United States." Thus, plaintiff's amended complaint would seek declaratory and injunctive relief concerning the constitutionality of this statute and its application to plaintiff. With respect to plaintiff's original complaint, defendant filed a motion for summary judgment on the grounds that the treatises were properly classified, and therefore exempt from disclosure pursuant to Exemption one of the FOIA, 5 U.S.C. ¤ 552(b)(1), and that they were protected by specific statutes and therefore exempt from disclosure pursuant to Exemption three of the FOIA, 5 U.S.C. ¤ 552(b)(3), and the specific statutes, Public Law 86-36, 50 U.S.C. ¤ 402 note; 18 U.S.C. ¤ 798; and 50 U.S.C. ¤ 403(d)(3). The central premise of these defenses was that the release of these treatises could reveal to foreign powers the extent to which the United States is able to decipher messages sent using certain codes. A further ground for defendant's motion for summary judgment was that defendant's procedures for processing FOIA requests are lawful because, although defendant does answer some FOIA requests after the statutory time limits have expired, 5 U.S.C. ¤ (a)(6), it answers all FOIA requests as expeditiously as possible, given its backlog and staff. On November 25, 1992, defendant decided to declassify Parts III and IV of Military Cryptanalysis and certain portions of part III of Military Cryptanalytics. Defendant's position with respect to the rest of Part III of Military Cryptanalytics and defendant's FOIA response policies has not changed. Defendant will amend its motion for summary judgment accordingly. With respect to plaintiff's motion for leave to file an amended complaint, defendant's response is not due until December 7, 1992, and defendant has not yet taken a final position on plaintiff's motion. Defendant anticipates that, as a result of its decision to declassify Parts III and IV of Military Cryptanalysis, defendant will oppose the motion on the basis that the claims sought to be raised in the amended complaint are now moot. Finally, there is a disputed issue as to discovery. Plaintiff has served requests for several forms of written discovery. Along with its motion for summary judgment, defendant filed a motion for a protective order staying discovery until the court disposes of defendant's motion for summary judgment. Defendant's position is that discovery will only be necessary if the court denies its motion for summary judgment. (d) Anticipated Motions. On November 20, 1992, counsel for the plaintiff advised counsel for the defendant that plaintiff intended to file an emergency motion on or about November 27, 1992. Currently, according to plaintiff, Parts III and IV of Military Cryptanalysis are in the possession of plaintiff and are also stored in libraries that are open to the public. Defendant understands that plaintiff's emergency motion would seek to enjoin defendant from taking action to recover these documents from either plaintiff or the libraries. Defendant further understands that the motion would also seek declaratory relief that would allow plaintiff to show the documents to expert witnesses for the purpose of litigating this case without incurring criminal penalties. Defendant anticipates that this motion will not be filed due to defendant's decision to declassify Parts III and IV of Military Cryptanalysis. Defendant does not at this time anticipate filing any additional motions. Defendant will, however, amend its motion for summary judgment in light of its decision to declassify parts of the documents at issue. (e) Further Proceedings. Because defendant has filed for summary judgment and for a protective order staying discovery, defendant believes that it would be premature to take a position as to discovery or trial. (f) Appropriateness of Special Procedures. Defendant does not anticipate that any special procedures will be necessary. (g) Modification of the Standard Pretrial Procedures. Defendant will not seek any modification of the standard pretrial procedures on account of the relative simplicity or complexity of this suit. (h) Prospects for Settlement. Defendant anticipates that its decision to declassify parts of the documents at issue will create a prospect for settlement of at least a part of this case. Counsel will discuss this prospect upon return of counsel for the plaintiff from Hawaii. (i) Other Matters. Defendant is not aware of any other matters requiring the court's attention. Respectfully Submitted, John A. Mendez United States Attorney (signed) Elizabeth A. Pugh (signed) John S. Martin Attorneys, Department of Justice Civil Division, Room 1024 901 E Street NW Washington, D.C. 20530 (202)616-0179