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Here's the judge's decision in the Bernstein case
[Forgive the scannos in the interest of speed. This is also at
http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/960415.decision]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DANIEL J. BERNSTEIN, | No. C-95-0582 MHP
|
Plaintiff, | OPINION
|
vs. |
|
UNITED STATES DEPARTMENT OF STATE |
et al., |
Defendants. |
____________________________________|
Plaintiff Daniel Bernstein brought this action against the Department of
State and the individually named defendants seeking declaratory and
injunctive relief from their enforcement of the Arms Export Control Act
("AECA"), 22 U.S.C. � 2778, and the International Traffic in Arms
Regulations ("ITAR"), 22 C.F.R. Sections 120-30 (1994), on the grounds that
they are unconstitutional on their face and as applied to plaintiff. Now
before this court is defendants' motion to dismiss for lack of
justiciability.1
Having considered the parties' arguments and submissions, and for the
reason set forth below, the court enters the following memorandum and
order.
BACKGROUND 2
At the time this action was filed, plaintiff was a PhD candidate in
mathematics at University of California at Berkeley working in the field
of cryptography, an area of applied mathematics that seeks to develop
confidentiality in electronic communication.
A. Cryptography
Encryption basically involves running a readable message known as
"plaintext" through a computer program that translates the message
according to an equation or algorithm into unreadable "ciphertext."
Decryption is the translation back to plaintext when the message is
received by someone with an appropriate "key." The message is both
encrypted and decrypted by common keys. The uses of cryptography are
far-ranging in an electronic age, from protecting personal messages over
the Internet and transactions on bank ATMs to ensuring the of military
intelligence.
As a graduate student, Bernstein developed an encryption algorithm he
calls "Snuffle." He describes Snuffle as a zerodelay private-key
encryption system. Complaint Exh. A. Bernstein has articulated his
mathematical ideas in two ways: in an academic paper in English entitled
"The Snuffle Encryption System," and in "source code" written in "C", a
high-level computer programming language,3 detailing both the encryption
and decryption, which he calls "Snuffle.c" and
"Unsnuffle.c", respectively. Once source code is converted into "object
code," a binary system consisting of a series of 0s and 1s read by a
computer, the computer is capable of encrypting and decrypting data. 4
B. Statutory and Regulatory Background
The Arms Export Control Act authorizes the President to control the
import and export of defense articles and defense services by
designating such items to the United States Munitions List ("USML"). 22
U.S.C. � 2778(a)(1). Once on the USML, and unless otherwise exempted, a
defense article or service requires a license before it can be imported
or exported. 22 U.S.C. � 2778(b)(2).
The International Traffic in Arms Regulations, 22 C.F.R. Sections 120-30, were
promulgated by the Secretary of State, who was authorized by executive
order to implement the AECA. The ITAR is administered primarily within
the Department of State by the Director of the Office of Defense Trade
Controls ("ODTC"), Bureau of Politico-Military Affairs. The ITAR allows
for a "commodity jurisdiction procedure" by which the ODTC determines if
an article or service is covered by the USML when doubt exists about an
item. 22 C.F.R. � 120.4(a).
Categories of items covered by the USNL are enumerated at section 121.1.
Category XIII, Auxiliary Military Equipment, includes "Cryptographic
(including key management) systems, equipment, assemblies, modules,
integrated circuits, components
or software with the capability of maintaining secrecy or
confidentiality of information or information systems .... __ _
� 121 XIII(b)(l). A number of applications of cryptography are excluded,
such as those used in automated teller machines and certain mass market
software products that use encryption. Id.
C. Plaintiff's Commodity Jurisdiction Determinations On June 30, 1992
Bernstein submitted a commodity jurisdiction ("CJ") request to the State
Department to determine whether three items were controlled by ITAR.
Those items were Snuffle.c and Unsnuffle.c (together referred to as
Snuffle 5.0), each submitted in C language source files, and his
academic paper describing the Snuffle system. Complaint Exh. A. On
August 20, 1992 the ODTC informed Bernstein that after consultation with
the Departments of Commerce and Defense it had determined that the
commodity Snuffle 5.0 was a defense article under Category XIII of the
ITAR and subject to licensing by the Department of State prior to
export. The ODTC identified the item as a "stand-alone cryptographic
algorithm which is not incorporated into a finished software product."
Complaint Exh. B. The ODTC further informed plaintiff that a commercial
software product incorporating Snuffle 5.0 may not be subject to State
Department control and should be submitted as a new commodity
jurisdiction request.
Plaintiff and ODTC exchanged copious and contentious correspondence
regarding the licensing requirements during the spring of 1993. Still
unsure if his academic paper had been included in the ODTC CJ
determination of August 20, 1992, Bernstein submitted a second CJ
request on July 15, 1993, asking for a separate determination for each
of five items. According to plaintiff these items were 1) the paper,
"The Snuffle Encryption System," 2) Snuffle.c, 3) Unsnuffle.c, 4) a
description in English of how to use Snuffle, and 5) instructions in
English for programming a computer to use Snuffle.5 On October 5, 1993
the ODTC notified Bernstein that all of the referenced items were
defense articles under Category XIII(b)(1). Complaint Exh. E; Defendant
Exh. 18. After plaintiff initiated this action, the ODTC wrote to
plaintiff to clarify that the CJ determinations pertained only to
Snuffle.c and Unsnuffle.c and not to the three items of explanatory
information, including the paper. Defendant Exh. 21. Bernstein appealed
the first commodity jurisdiction determination on September 22, 1993.
That appeal is still pending.
Plaintiff seeks to publish and communicate his ideas on cryptography.
Because "export" under the ITAR includes "[d]isclosing . . . technical
data to a foreign person, whether in the United States or abroad",
Bernstein asserts that he is not free to teach the Snuffle algorithm, to
disclose it at
academic conferences, or to publish it in journals or online discussion
groups without a license.
LEGAL STANDARD
A motion to dismiss will be denied unless it appears that the plaintiff
can prove no set of facts which would entitle him or her to relief.
Conlev v. Gibson, 355 U.S. 41, 45-46 (1957); Fidelity Financial Corp. v.
Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir.
1986), cert. denied, 479 U.S. 1064 (1987). All material allegations in
the complaint will be taken as true and construed in the light most
favorable to the plaintiff. NL Industries. Inc. v. Kaplan, 792 F.2d 896,
898 (9th Cir. 1986). Although the court is generally confined to
consideration of the allegations in the pleadings, when the complaint is
accompanied by attached documents, such documents are deemed part of the
complaint and may be considered in evaluating the merits of a Rule
12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th
Cir.), cert. denied sub. nom. Wyomina Community Dev. Auth. v. Durning,
484 U.S. 944 (1987).
DISCUSSION
Plaintiff makes a number of allegations of unconstitutionality with
respect to the AECA and ITAR. Specifically, plaintiff alleges that the
act and accompanying regulations, both facially and as applied, are a
content-based
infringement on speech, act as an unconstitutional prior restraint on
speech, are vague and overbroad, and infringe the rights of association
and equal protection. Bernstein also alleges that the CJ request and
registration processes as well as the licensing procedures are
unconstitutional, although he does not state the basis of their
unconstitutionality. Finally, plaintiff alleges that the actions of
defendants are arbitrary and capricious and constitute an abuse of
discretion under the Administrative Procedure Act, 5 U.S.C. Sections 701 et ~g
Defendants move to dismiss on the grounds that these issues are
nonjusticiable.
I. Justiciability The AECA plainly states:
The designation by the President (or by an official to whom the
President's functions under subsection (a) of this section have been
duly delegated), in regulations issued under this section, of items as
defense articles or defense services for purposes of this section shall
not be subject to judicial review. 22 U.S.C. � 2778(h). Defendants
conclude that this language, as well as the Constitution, precludes
review of commodity jurisdiction determinations by this court. Plaintiff
does not dispute this assessment. Defendants characterize this action as
an attempt to obtain judicial review of their CJ determinations to place
plaintiff's cryptographic items on the USML; as such, they maintain the
action is precluded. However, this characterization does not comport
with either the complaint
itself or plaintiff's repeated assertions that he is not seeking
judicial review of defendants' CJ decision, but of the constitutionality
of the statute and its regulations.
It is well established under the political question doctrine that courts
do not have the expertise to examine sensitive political questions
reserved for the other branches of government. See Baker v. Carr, 369
U.S. 186 (1962). More to the point, as defendants note, the
determination of whether an item should be on the USML "possesses nearly
every trait that the Supreme Court has enumerated traditionally renders
a question 'political."' United States v. Martinez, 904 F.2d 601, 602
(llth Cir. 1990) (finding the CJ determination nonjusticiable without
deciding if the then recent amendment to the AECA precluding judicial
review applied to that case). However, a review of a particular CJ
decision is a distinctly different question from a constitutional
challenge to a statute. In Martinez, the Eleventh Circuit noted that
defendants had not alleged a constitutional violation.6 904 F.2d at 603.
With respect to constitutional questions, the judicial branch not only
possesses the requisite expertise to adjudicate these issues, it is also
the best and final interpreter of them. Furthermore, as plaintiff points
out, federal courts have consistently addressed constitutional issues in
the context of national security concerns. See. e.q., New York Times Co.
v. United States, 403 U.S. 713 (1971); Haia v. Aaee,
453 U.S. 280 (1981). Because the issues before this court do not
necessitate a factual inquiry into the CJ determination, but a legal one
into broader constitutional claims, the question is whether the
statutory preclusion of judicial review of CJ decisions also embraces
this court's review of the statute's constitutionality. 7
Defendants cite a number of Ninth Circuit cases that reject the
reviewability of commodity designations under the analogous Export
Administration Act, 50 U.S.C. App. Sections 2401 et seq., administered by the
Commerce Department. Because this court is not reviewing the CJ
determination itself, those cases miss the mark. Of those cases,
however, United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992), cert.
denied, 507 U.S. 917 (1993), is instructive.
In Bozarov the defendant was charged with exporting items on the
Commerce Control List ("CCL")--which is akin to the USML--without a
license in violation of the statute. The items, which were computer disk
manufacturing equipment, had been listed on the CCL for national
security reasons. Bozarov challenged the constitutionality of the Act's
preclusion of judicial review. In upholding the preclusion of review,
however, the court noted its decision was "bolstered by the fact that
certain limited types of judicial review are available under the EAA
despite the Act's seemingly absolute preclusion of review. First,
colorable constitutional claims may be reviewed by the courts even when
a statute otherwise
precludes judicial review." Id. at 1044 (citing Webster v. Doe, 486 U.S.
592, 602-05 (1988)). In fact, in order to reach the question of whether
it was constitutional to preclude judicial review, the Ninth Circuit had
to first find the issue justiciable. There, even the government conceded
that Bozarov's nondelegation challenge amounted to a colorable
constitutional claim. 974 F.2d at 1044 n.7. More definitive still is the
Supreme Court's decision in Webster_, where it addressed whether
employment decisions by the Director of the CIA were subject to judicial
review. In Webster, plaintiff Doe was discharged from the CIA after
informing the agency that he was a homosexual. He contested his
termination partly on constitutional grounds. The Court held that the
applicable statute bestowed so much discretion on the CIA Director in
terminating employees that judicial review of those decisions was
precluded under section 701(a)(2) of the APA. However, the Court made
clear that such a holding did not preclude review of constitutional
claims, noting that where Congress intends to preclude judicial review
of constitutional claims its intent to do so must be clear.... We
require this heightened showing in part to avoid the "serious
constitutional question" that would arise if a federal statute were
construed to deny any judicial forum for a colorable constitutional
claim. 486 U.S. at 603 (citations omitted). 8 In the instant case,
Congress has clearly precluded review of CJ determinations under the
AECA, 22 U.S.C. � 2778(h). But it has just as clearly tailored the
preclusion of review to the designation by the President or his delegate
"of items as
I defense articles or defense services for the purposes of this
section." Id. Moreover, the language of section (h) indicates that it
pertains only to delegations of the President's "functions under
subsection (a) of this section." Those functions do not include
constitutional determinations.
As this court finds that the AECA does not preclude judicial review of
colorable constitutional claims, it must determine if plaintiff's claims
are colorable in order to decide the issue of justiciability.
II. Colorability of Plaintiff's Constitutional Claims
Defendants maintain that plaintiff has raised no colorable
constitutional claim because this case does not concern "speech"
protected by the First Amendment, and even if it does, the minimal
infringement is excusable under O'Brien v. United
U.S. 367 (1968). Defendant's further argue that plaintiff has not made a
colorable claim that the CJ determinations constitute a prior restraint
or that the AECA and ITAR are overbroad or vague.9 Plaintiff responds
that the items that were subject to CJ determinations are speech of the
most protected kind.
A. Analytical Framework
To determine if Bernstein states a "colorable constitutional claim," it
is helpful to know what standard obtains. Colorability, a concept often
employed by courts, is
rarely defined. Not surprisingly, discussions of colorability appear to
be highly specific to both the claim and context in which they arise.
The Ninth Circuit has adopted the proposition that a constitutional
claim is not colorable if it is clearly immaterial and made only for the
purposes of jurisdiction, or "is wholly insubstantial or frivolous."
Hoye v. Sullivan, 985 F.2d 990, 991-92 (9th Cir. 1993) (citing Boettcher
v. Secretary of HHS, 759 F.2d 719, 722 (9th Cir. 1985)).
On a number of occasions the Ninth Circuit has addressed whether
constitutional claims were colorable in the context of national security
decisions. These have been largely due process and equal protection
challenges to revocations of a security clearance. Dorfmont v. Brown,
913 F.2d 1399 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991); High
Tech Gays v. Defense Ind. Sec. Clearance Off., 895 F.2d 563 (9th Cir.),
reh'a denied, en banc, 909 F.2d 375 (1990); Dubbs v. CIA, 866 F.2d 1114
(9th Cir. 1989).
In Dorfmont the court held that there was no cognizable liberty or
property interest in a security clearance that could give rise to a due
process claim and therefore the claim was not colorable. The Dorfmont
court noted, however, that it had found equal protection challenges to
security clearance denials colorable in Hiah Tech Gays. 913 F.2d at
1403. In fact, in Hiah Tech Gays the court bypassed the issue of
colorability altogether and concluded on the merits that homosexuals
were
not a suspect or quasi-suspect class for purposes of heightened equal
protection scrutiny.10 Plaintiffs in High Tech Gays had also brought a
First Amendment claim based on freedom of association. The court found
that plaintiffs had failed to allege or show a security clearance had
been denied solely by reason of their membership in a gay organization
and, therefore, there was no case or controversy with respect to that
claim. In Dorfmont the court described its disposition of the First
Amendment claim in Hiah Tech Gays as failure "to allege sufficient facts
to raise a justiciable First Amendment claim." 913 F.2d at 1403 n.2. It
is unclear whether the court's discussion of justiciability in Dorfmont
applies to lack of colorabilty, and if so, what standard it implies. As
Hoye is the most recently and clearly articulated of the Ninth Circuit's
attempts to define colorability, its standard will govern the court's
analysis in this case.
B. Analysis
Neither party agrees on exactly which items are at issue in this case,
which confounds the analysis of whether subjecting them to a licensing
requirement raises a colorable First Amendment claim. Defendants claim
that only Snuffle.c and Unsnuffle.c are controlled by the USML and
subject to the I licensing requirement. This is based on the 1995 letter
the ODTC sent to plaintiff after he had filed suit in which it clarified
that the CJ determinations did not include any
explanatory information, including the paper. This clarification would
have been more appropriate in response to plaintiff's letter of July 15,
1993. Bernstein claims that his paper, "The Snuffle Encryption System,"
remains on the USML and that he has not been able to publish it without
a license. It seems evident from the correspondence between Bernstein
and the ODTC that the paper was indeed determined to be on the USML at
the latest by October 5, 1993, but that as of June 29, 1995, the ODTC
disavowed that decision. It is disquieting that an item defendants now
contend could not be subject to regulation was apparently categorized as
a defense article and subject to licensing for nearly two years, and was
only reclassified after plaintiff initiated this action. Nonetheless,
given defendants' reevaluation, the claims pertaining to the paper now
appear moot.12
1. Speech
The paper, an academic writing explaining plaintiff's scientific work in
the field of cryptography, is speech of the most protected kind. See
Sweezv v. New Hampshire, 354 U.S. 234, 249-50 (1957) (noting the
importance of protecting scholarship and academic inquiry). Nor do
defendants contest this. Rather, defendants contend that Snuffle.c and
Unsnuffle.c--the source code for the encryption program--are not speech
but conduct. Plaintiff argues that computer code inscribed on paper,
like any non-English language, is speech
protected by the First Amendment .13 Plaintiff further argues that even
functional software is treated as protectable expression under copyright
law. 14
Defendants urge this court to find the source code for Snuffle
unprotected conduct rather than speech. They cite Texas v. Johnson, 491
U.S. 397 (1989), for the proposition that conduct must be "'sufficiently
imbued with the elements of communication"' to fall within the
protections of the First Amendment. Id. at 404 (quoting Spence v.
Washington, 418 U.S. 405, 409 (1974)). In evaluating the communicative
aspects of burning a flag in Texas v. Johnson, the Court framed the
inquiry as whether the conduct entails an intent to convey a particular
message and the likelihood of that message being understood. Id.
According to defendants, the source code, as a functioning cryptographic
product, is not intended to convey a particular message. It cannot be
speech, they say, because its purpose is functional rather than
communicative.
However, the Court in both Johnson and Spence, the flag desecration case
upon which Johnson relies, inquired into the communicative nature of
conduct only after concluding that the act at issue was indeed conduct
and not speech. Both cases strongly imply that a court need only assess
the expressiveness of conduct in the absence of "the spoken or written
word." Johnson, 491 U.S. at 404; see Spence, 418 U.S. at 409 ("To be
sure, appellant did not choose to articulate his views through printed
or spoken words. It is therefore necessary to
determine whether his activity was sufficiently imbued with elements of
communication to fall within the scope of the First and Fourteenth
Amendments ...."). In the instant case, Bernstein's encryption system
is written, albeit in computer language rather than in English.
Furthermore, there is little about this functional writing to suggest it
is more like conduct than speech. A computer program is so unlike flag
burning and nude dancing that defendants' reliance on conduct cases is
misplaced. It would be convoluted indeed to characterize Snuffle as
conduct in order to determine how expressive it is when, at least
formally, it appears to be speech. Recently the Ninth Circuit addressed
the difference between speech and expressive conduct in assessing the
constitutionality of the English-only provision amended to Arizona's
constitution. Yniguez v. Arizonans for Official English, 69 F.3d 920,
934-36 (9th Cir. 1995) (en banc), cert. granted, 64 U.S.L.W. 3639 (U.S.
Mar. 25, 1996) (No. 95-974). Defendants in Yniguez, like defendants
here, sought to characterize one's choice of language as expressive
conduct. The court was similarly "unpersuaded by the comparison between
speaking languages other than English and burning flags." Id. at 934.
The court further concluded that language was speech by definition:
Of course, speech in any language consists of the ' expressive
conduct' of vibrating one's vocal chords, moving one's mouth and
thereby making sounds, or of putting pen to paper, or hand to
keyboard. Yet the fact 16 that such 'conduct' is shaped by
language--that is, a sophisticated and complex system of understood
meanings--is what makes it speech. Language is by definition
speech, and the regulation of any language is the regulation of
speech.
Id. at 934-35. Nor does the particular language one chooses change the
nature of language for First Amendment purposes. This court can find no
meaningful difference between computer language, particularly high-level
languages as defined above, and German or French. All participate in a
complex system of understood meanings within specific communities. Even
object code, which directly instructs the computer, operates as a
"language." When the source code is converted into the object code
"language," the object program still contains the text of the source
program. The expression of ideas, commands, objectives and other
contents of the source program are merely translated into
machine-readable code. 15
Whether source code and object code are functional is immaterial to the
analysis at this stage. Contrary to defendants' suggestion, the
functionality of a language does not make it any less like speech. The
Yniguez court noted that "the choice to use a given language may often
simply be based on a pragmatic desire to convey information to someone
so that they may understand it." Id. at 935. Thus, even if Snuffle
source code, which is easily compiled into object code for the computer
to read and easily used for encryption, is essentially functional, that
does not remove it from the realm of speech. Instructions,
do-it-yourself manuals, recipes, even technical information about
hydrogen bomb construction, see United States v. The Progressive. Inc.,
467 F. Supp. 990 (W.D. Wisc. 1979), are often purely functional; they
are also speech.
Music, for example, is speech protected under the First Amendment. See
Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). The music
inscribed in code on the roll of a player piano is no less protected for
being wholly functional. Like source code converted to object code, it
"communicates" to and directs the instrument itself, rather than the
musician, to produce the music. That does not mean it is not speech.
Like music and mathematical equations, computer language is just that,
language, and it communicates information either to a computer or to
those who can read it. 16
Defendants argue in their reply that a description of software in
English informs the intellect but source code actually allows someone to
encrypt data. Defendants appear to insist that the higher the utility
value of speech the less like speech it is. An extension of that
argument assumes that once language allows one to actually do something,
like play music or make lasagne, the language is no longer speech. The
logic of this proposition is dubious at best. Its support in First
Amendment law is nonexistent.
By analogy, copyright law also supports the "expressiveness" of computer
programs. Computer software is subject to copyright protection as a
"literary work." 17 U.S.C. Sections 101, 102(a)(1); accord Johnson Controls v.
Phoenix Control Systems, 886 F.2d 1173, 1175 (9th Cir. 1989). For the
purposes of copyright, literary works "are works, other than audiovisual
works, expressed in words, numbers, or other verbal or numerical symbols
or indicia, regardless of the nature of the material objects, such as
books, periodicals, manuscripts, phonorecords, film, tapes, disks, or
cards, in which they are embodied." 17 U.S.C. Section 101.
A computer program is further defined under the copyright statute as "a
set of statements or instructions to be used directly or indirectly in a
computer in order to bring about a certain result." Id. (emphasis
added). Source code is essentially a set of instructions that is used
indirectly in a computer since it must first be translated into object
code to achieve the desired result. The statutory language, along with
the caselaw of numerous circuits, supports the conclusion that copyright
protection extends to both source code and object code. See NLFC. Inc.
v. Devcom Mid-America. Inc., 45 F.3d 231, 234-35 (7th Cir.), cert.
denied, 115 S.Ct. 2249 (1995) ("Both the source and object codes to
computer software are also individually subject to copyright
protection.") (citations omitted); Johnson Controls, 886 F.2d at 1175
("Source code and object code, the literal components of a program, are
consistently held protected by a copyright on the program.") (citations
omitted); Apple Computer. Inc. v. Franklin Computer Corp., 714 F.2d
1240, 1249 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984).
Copyright protection, designed to protect original expression, 17 U.S.C.
Section 102(a), supports the likeness of a computer program to speech as
defined by First Amendment law. The expression of an idea, a~ opposed to
the idea itself, which is not afforded copyright protection under 17
U.S.C. Section 102(b), connotes the "speaking" of an idea. An encryption
program expressed in source code communicates to other programmers and
ultimately to the computer itself how to make the encryption algorithm
(the idea) functional. Nor, under copyright law, does sheer
functionality diminish the expressive quality of a copyrightable work.
Apple Computer. Inc., 714 F.2d at 1252 (citing Mazer v. Stein, 347 U.S.
201, 218 (1954)); cf. Lotus Dev. Corp. v. Borland Int'l. Inc., 49 F.3d
807, 815 (lst Cir. 1995), judgment aff'd, 116 S.Ct. 804 (1996) (holding
that a text describing how to operate something is subject to copyright
protection while the method of operation itself is not). While copyright
and First Amendment law are by no means coextensive, and the analogy
between the two should not be stretched too far, copyright law does lend
support to the conclusion that source code is a means of original
expression.
For the purposes of First Amendment analysis, this court finds that
source code is speech. Having concluded that all the items at issue,
including Snuffle.c and Unsnuffle.c are speech, this court must now
briefly review the claims defendants contest for colorability.
2. O'Brien
Defendants, relying on a characterization of Snuffle as conduct, argue
that even if that conduct is expressive, the relatively mild O'Brien
test should be employed. United States v. O'Brien, 391 U.S. 367 (1968),
establishes the standard for assessing when a governmental regulation of
conduct may nonetheless run afoul of the First Amendment's speech
protections. Under O'Brien a regulation of conduct that incidentally
restricts speech will be valid if 1) it is within the power of the
government, 2) it furthers an important or substantial government
interest, 3) the government interest is unrelated to the suppression of
free expression and 4) the incidental restriction on speech is no
greater than is essential to further that interest. Id. at 377.
Given that Snuffle source code is speech and not conduct, O'Brien does
not appear to provide the appropriate standard under which to evaluate
plaintiff's claims.17 However, as the parties have not had an
opportunity to brief the issue of what First Amendment standard obtains,
the court will apply O'Brien for the limited purpose of determining
colorability. Defendants make a strong case that the AECA and ITAR
satisfy the first and second prongs of O'Brien--that they are within the
government's power and further the important interest of national
security. With respect to prongs three and four, however, this court
cannot say that plaintiff~s contentions are frivolous. Both the
technical data provision of the ITAR, 22 C.F.R. Section 120.10, and Category
XIII of the USML, 22 C.F.R. Section 121.1, regulating cryptographic software
appear to relate to the "suppression of free expression" and may reach
farther than is justifiable.
Defendants also argue that the Ninth Circuit's decision in United States
v. Edler Industries Inc., 579 F.2d 516 (9th Cir. 1978), precludes a
First Amendment attack under O'Brien on the AECA and its accompanying
regulations. In Edler the court reviewed a conviction under the
predecessor of the AECA for unlicensed exportation of technical data
relating to a defense article on the USML. The technical data at issue
in Edler related to a technique of tape wrapping with applications for
missile components. After finding that "an expansive interpretation of
technical data relating to items on the Munitions List could seriously
impede scientific research and publishing and international scientific
exchange," ~ at 519, the court went on to adopt a narrowing construction
to save the statute. 18 Defendants urge that if Edler allows the
government to legitimately restrict the export of technical data
relating to a defense article, it can certainly restrict the defense
article itself. Such an argument is an extension of Edler this court is
unwilling to adopt. The validity of the of the munitions list was simply
not at issue in that case. While Edler will be instructive to an
analysis of the AECA under the First Amendment, it is sufficiently
distinguishable on its facts that it cannot preclude plaintiff's
challenge at this stage.
While the court makes no judgment on the merits, it finds plaintiff
alleges facts sufficient to state a nonfrivolous First Amendment claim
and hence that claim is colorable.
3. Prior Restraint
Plaintiff alleges that the AECA and ITAR act as an administrative
licensing scheme for the publication of scientific papers, algorithms
and computer programs related to cryptography, since publishing could
release that information to foreign persons and would constitute
exportation under the ITAR. 22 C.F.R. Section 120.17 .19
Governmental licensing schemes, such as the AECA and ITAR, come with a
heavy presumption against their validity when they act as a prior
restraint on speech. See Nebraska Press Assoc. v. Stuart, 427 U.S. 539
(1976); New York Times Co. v. United States, 403 U.S. 713 (1971) (per
curiam); Near v. Minnesota, 283 U.S. 697 (1931). Prior restraints have
even been struck down in the face of national security concerns. See
e.a. New York Times, 403 U.S. at 714 (dissolving retraining order
against newspaper publication of Pentagon Papers that included
classified information). In New York Times the national security
asserted was too vague a justification for prior restraints. Id. at 719
(Black, J., concurring), 725-26 (Brennan, J., concurring). In his
concurrence to the per
curiam decision, Justice Stewart suggested a stringent test for
permissible prior restraints, allowing them only when "disclosure . . .
will surely result in direct, immediate, and irreparable damage to our
Nation or its people." Id. at 730 (Stewart J., concurring). In response
to the prior restraint claim, defendants rely on the argument rejected
above, that Snuffle is not speech and does not implicate the First
Amendment.
Since Snuffle is speech that is potentially subject to the prior
restraint of licensing, and under the AECA that restraint is
unreviewable, plaintiff's prior restraint claim is colorable. 20
4. Overbreadth
Plaintiff alleges that the AECA and ITAR are overbroad with respect to
their regulation of items with predominately civil applications, the
definition of export, Category XIII of the USNL, and the definition of
software.
Defendants rely extensively on Edler to argue that any overbreadth
challenge is foreclosed to plaintiff because the Ninth Circuit has
provided a limiting construction to the technical data provision. They
also cite the 1984 revisions to ITAR which they contend are even more
solicitous of speech because they provide for certain exemptions from
technical data for academic research and information in the "public
domain." Defendant Exh. lA. However, plaintiff's overbreadth claim goes
beyond the technical data provision and beyond those items classified as
technical data. The complaint makes clear that the challenge is
significantly broader than the scope of Edler and pertains to the
defense articles themselves.
Facial overbreadth is concededly "strong medicine" employed as a last
resort when a limiting construction cannot be applied to a statute.
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Defendants employ
Broadrick to propose that when conduct as well as speech is regulated,
the overbreadth must be substantial in relation to the statute's
legitimate sweep. Id. at 615. However, in a subsequent Supreme Court
decision relied upon by defendants, Members of the City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), the Court noted
that "where the statute unquestionably attaches sanctions to protected
conduct, the likelihood that the statute will deter that conduct is
ordinarily sufficiently great to justify an overbreadth attack." Id. at
801 n.l9 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205
(1975)). In Taxpayers for Vincent the Court clarified the application of
substantial facial overbreadth, saying there must be a "realistic danger
that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court ...." Id. at
801. Merely being able to conceive of "some impermissible applications
of a statute" is insufficient. Id. at 800.
As this court has noted above, cryptographic source code is speech. Even
if the statute aims at conduct as well as speech so as to invoke the
"substantial overbreadth" doctrine, the court at this stage of the
proceedings need only determine whether the claim is colorable. On the
record before it at this time, the court cannot say that plaintiff's
claim that enforcement of some provisions of the statute or regulations
could significantly compromise the protected speech of third parties is
frivolous.
5. Vagueness
Plaintiff alleges that a number of terms and provisions within the AECA
and ITAR are impermissibly vague in that they fail to give notice of the
conduct they regulate and have a chilling effect on speech. These
provisions include inter alia the meaning of software capable of
maintaining secrecy under Category XIII of the USML, the exemptions for
information taught in universities, the definition of public domain, and
the "willful" requirement for criminal penalties.
For a claim of facial vagueness to survive, the deterrent effect of the
statute on protected expression must be "real and substantial" and not
easily narrowed by a court. Young v. American Mini Theaters. Inc., 427
U.S. 50, 60 (1976). Defendants again rely heavily on Edler to argue that
the Ninth Circuit has already resolved the problems plaintiff
challenges. While this may be true of the technical data provision, it
leaves unaddressed numerous other areas of concern. Defendants also
conclude summarily that both the definition of cryptographic software
and the exemptions from this definition are clear to a person of
ordinary intelligence. This seems to be a bit of dissimulation, unless
it is a confession, since the ODTC itself mistakenly classified
Bernstein's academic paper as a defense article under Category XIII.
Finally, defendants contest plaintiff's vagueness challenge to the
"willful" requirement for criminal penalties, citing the Ninth Circuit's
clarification that under the AECA willfulness requires a "voluntary,
intentional violation of known legal duty ...." United States v.
Lizarraga-Lizarraga, 541 F.2d 826, 828 (1976) (construing the
predecessor to the AECA). According to Posters 'N' Things. Ltd. v.
United States, _ U.S. _ , 114 S. Ct. 1747, 1754 (1994), such a scienter
requirement helps to avoid the problem of vagueness a criminal statute
might otherwise allow.
With the exception of the claim against the willful standard for
criminal violations of the AECA, this court does not find plaintiff's
claims of vagueness frivolous.
It should be emphasized that with the exception of its conclusions that
source code is speech for the purposes of the First Amendment and that
this case is justiciable, the court makes no other substantive holdings.
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that defendants'
motion to dismiss is DENIED.
IT IS SO ORDERED.
Dated: April 15, 1996 MARILYN HALL PATEL
United States District Judge
ENDNOTES
1. Defendants pose the justiciability issue as one of subject matter
jurisdiction. As those questions are distinct and defendants arguments
go to justiciability, this court addresses the motion as one pertaining
to justiciability alone. See Baker v. Carr, 369 U.S. 186, 198 (1962).
2. Except where noted, these facts come from undisputed portions of the
record.
3. Source code is the text of a source program and is generally written
in a high-level language that is two or more steps removed from machine
language which is a low-level language. High-level languages are closer
to natural language than lowlevel languages which direct the functioning
of the computer. Source code must be translated by way of a translating
program into machine language before it can be read by a computer. The
object code is the output of that translation. It is possible to write a
source program in high-level language without knowing about the actual
functions of the computer that carry out the program. Encyclopedia of
Computer Science 962, 1263-64 (Anthony Ralston & Edwin D. Reilly eds.,
3d ed. 1995)
4. The parties disagree about whether the computer code submitted by
plaintiff to the State Department is technically "software." Defendants
refer to the computer code as software even though it i8 not in object
code on a disk. Plaintiff contests this characterization. In any event,
in order to be software, which are instructions to the computer, the
instructions must be in a form that can be easily altered as
distinguished from firmware or hardware which cannot be readily altered,
if it can be altered at all.
The court notes that 22 CFR Section 121.8(f) defines "software" for the
purposes of the AECA. That definition is descriptive of content,
however, and does not define the actual format or physical form of the
software. At this stage the court need not resolve this issue since
whatever the program's form, the ODTC has subjected it to the licensing
requirements.
5. The CJ request of July 15, 1993, refers to the items as W BCJF-2, W
BCJF-3, DIBCJF-4, DJBCJF-5, and W BCJF-6 without distinguishing
information. Complaint Exh. D.
6. This statement appears to be contradicted by that court's own
reference to defendants' overbreadth claim on the preceding page of its
opinion. Martinez, 904 F.2d at 601. It is not clear whether the
overbreadth argument went to constitutionality or merely to statutory
interpretation.
7. Plaintiff argues that this court has power to review his cause of
action under a political question analysis. Even if that were so, he
fails to consider the effect of a clear statement by Congress precluding
judicial review in the context of the AECA. Furthermore, plaintiff
dedicates nearly ten pages of his brief in opposition to this motion to
arguing that review is proper under the Administrative Procedure Act
("APA"). However, as defendants note, to the extent judicial review is
precluded by statute, it is also precluded by the APA. 5 U.S.C. Section
701(a)(1) ("This chapter applies . . . except to the extent that--(l)
statutes preclude judicial review ...."). That does not necessarily
mean plaintiff's allegation that defendants exceeded their lawful
authority under the APA is unreviewable. Plaintiff is correct that U.S.
v. Bozarov allows courts to exercise review, in the face of statutory
preclusion, of "claims that the Secretary acted in excess of his
delegated authority under the EAA." 974 F.2d at 1045. Nonetheless,
defendants only argue nonjusticiability based on the First Amendment
claim. This court declines to rule on the colorability of every one of
plaintiff's claims without briefing on those issues. Currently before
the court is simply the issue of the justiciability of plaintiff's First
Amendment challenge.
8. The Court did not consider whether Doe presented a colorable
constitutional claim because that question was not properly before the
Court.
9. Defendants only argue in passing that plaintiff's claim that the CJ
determinations were made in excess of statutory authority is not
justiciable.
10. The discussion of Hiah Tech Gays in Dorfmont betrays the unusual
procedural posture the Ninth Circuit adopted in order to reach the
merits: "Without addressing whether the federal courts have jurisdiction
to hear these claims, we ruled in favor of defendants on the merits of
the equal protection attack." 913 F.2d at 1403 (emphasis added)
(citation omitted).
11. Reading "colorable" to mean sufficient to state a claim, or even
nonfrivolous, is supported by the Sixth Circuit's decision in Brooks v.
Seiter, 7-79 F.2d 1177, 1181 (6th Cir. 1985), in which the court, using
a frivolousness standard, held that plaintiff prisoners had alleged a
First Amendment violation when they complained that prison officials
withheld mail order publications. In the context of that holding, the
court said that the state interest in deferring to prison officials did
not bar courts from hearing a "colorable constitutional claim." Id.
12. If there is any uncertainty about this, defendants should state
their determination without equivocation so that the mootness issue can
be completely resolved as soon as possible.
13. Bernstein also contends that encryption software is important not
only as speech, but as a tool to protect private speech. Plaintiff
argues that cases protecting anonymous speech and prohibiting compelled
speech support this novel proposition. However, certainly at this stage,
the court need not reach the issue.
14. Plaintiff briefly argues that his encryption program, written in
source code on paper, is not functional at all. Given the ease with
which one can convert source code into object code, however, this
argument is specious. More to the point is plaintiff's contention that
source code and functioning software are both fully protected under the
First Amendment.
15. The court does not employ the word "translate" as art thereby
excluding the applicability of "compile", "interpret" or related terms.
16. Whether such "languages" as assembly language or low-level languages
constitute speech, or may sometimes constitute speech, need not be
addressed at this time in view of the court's ruling that the source
code provides the basis for a colorable claim.
17. Plaintiff cites Justice Department memoranda that question the
constitutionality of some of the ITAR provisions as well as the
propriety of an O'Brien analysis. Plaintiff Exh. A at 60007, 60090. A
1978 memo from the DOJ Office of Legal Counsel addressing the
constitutionality of the ITAR restrictions on public cryptography noted
that "even a cursory reading of the technical data provisions reveals
that those portions of the ITAR are directed at communication. A more
stringent constitutional analysis than the O'Brien test is therefore
mandated." Plaintiff Exh. A at 60084 n.16. While Snuffle was classified
as a munition rather than as technical data, Category XIII of the USML
also directly regulates public cryptography.
18. The court's narrowing construction mandates that the statute and
regulations only prohibit the export of technical data "significantly
and directly related to specific articles on the Munitions List. n 579
F.2d at 521.
19. Defendants continue to argue that plaintiff was mistaken about the
inclusion of the academic paper in the CJ determinations made by the
ODTC. As the court has noted, plaintiff had every reason to believe his
paper had been determined to be a defense article until defendants'
clarifying letter of June 29, 1995. Whether or not the prior restraint
that may have been applied to the paper is still relevant or
whether this confusion could happen again given the apparent
applicability of the public domain exception to work of this kind, 22
C.F.R. Section 120.11(a)(8), is a matter the court declines to address at this
time.
20. Defendants are correct that with respect to the two instructional
items included in the second CJ determination and which ODTC
subsequently identified as technical data, a prior restraint claim seems
foreclosed by Edler, 579 F.2d at 521 ("So confined, the statute and
regulations are not overbroad. For the same reasons the licensing
provisions of the Act are not an unconstitutional prior restraint on
speech.").
[end]