next case for argument is stagger says united states department state may please the court laurence rosenberg for stag p c this case i think the podium comes up a little if you go to your right hand side and there's about that pre publication licensing requirement that lacks the constitutionally required safeguards namely judicial review limited discretion and a specified short time period for decision this court can resolve this  mess they said and said absolutely no export of any of this material including deemed export it would be constitutional but it's only not constitutional because the government will make exceptions i don't think that's right your honor i think even if there were an absolute prohibition to the extent that speech is an accomplice ten the prohibition we would argue would be overbroad and it would need to be more narrowly would be able to get out of this by just exempting everything but this leads me judge lynch to the way i think this court can resolve us and then we go back to one issue that has puzzled me from the very start i think i think it was for this if this court were to write an opinion that says the material at issue here is not subject to the current law that would be fine with us and then response to a follow up question as to what do we mean by the material at issue here the response was the that is the material subject to the public domain exception in the regulation so now you are here saying that we should look at this the way the government at least at one time interpreted this regulation when i thought judge fellow wrote the opinion that last time you said that would be fine with you why am i or am i wrong in interpreting that well i don't think we meant to limit it that way but remember that injunction and so i don't think there's something is there still anything in the record that says what actually the material at issue is that is to say what mr stagg intends to talk about there is not your honor but we offered to put that in the record in camera before the district court and judge fail said that was not necessary because this is a facial challenge and so and the facial challenge part is kind of the key here one thing that has become more clear since that decision is the government has in some ways shifted its position again yeah they showed us on the internet if they're around all the time in this case well why don't what is actually an issue and not an issue which makes it a little difficult for a judge but let's let's try to focus on what is it issue this is a facial challenge to what exactly the pre publication license requirement that the government said in two thousand and two what language in the statute because i thought at one time we were told either  your even in your briefing here that is a facial challenge to the deemed export provision yes it's the deemed export provision as it's interpreted by the government and it's interpreted to include the pre publication license requirement the specific language of that requirement was repealed that's part of the problem it was repealed in two thousand nine hundred and eighty four it was the footnote that we talked about in arbor if i can read it to you but it's the language that said the burden for obtaining appropriate us government approval for the publication of technical data following within the definition in one hundred and twenty five a one including such date as may be developed under other than us government contracts is on the person or company seeking the publication that was the language of the requirement write it was repealed in one thousand nine hundred and four for thirty one years the state department told the public we don't regulate the publication of technical data period it's not covered then in two thousand and fifteen in the federal register notice the government said wait a nd we do regulate the publication of technical data the actual language of the regulation relates to technical data and it does it does what they unilaterally repealed it by some and they taking out a footnote about who had the burden of proof on pre publication when and that's the that's one of the reasons we are you it's unconstitutionally vague because look the problem here is i think my question really was a little simpler than that you are saying you have a facial challenge to something yes what are we declaring unconstitutional if we agree with you not the entire now not the i term related to physical stuff like guns and tanks and we're wetwork conduct or conduct the way out of this your honor if i may but but would we be saying that there would be no pre approval required if you wanted to give a lecture on how to build an advanced type of nuclear weapon which your engineering firm has come up with in a public forum that would be permissible if we strike down this regulation as you request is that correct unless there's classified information that wouldn't be allowed or if the person has been classified yet the guy just invented this new device or this new approach and now he's going to talk about how to do it things can be cut and classified really i mean if you does that and it's going to become classified there are criminal implications  is that class is that like i know that right away that's going to be classified material well i think part of that what the government has said is if you have reason to believe it would be classified you wanted a criminal problem i don't know what i have reason to believe it the point is though that i would know very clearly that it's technical data weapons systems right and you're saying that that should be it's facially unconstitutional to require any pre approval of doing that yes as long as it is pure speech not conduct that is different from the mac case of the th circuit where someone was you know stole naval information and was directly passing it to a  foreign national that clearly is in permissible under our reading what if it weren't stolen information information if you hand someone a piece of paper that's conduct but if you say it out loud in a lecture you read it that piece of paper so that assuming that it wasn't stolen information the fellow in mac was properly sanctioned because he handed a document to someone but if he read the contents of the document to the person while the person a foreign agent or the person took notes that would be different no no because the point is it's a difference between general speech so if you give a presentation or pose something to a web so he s to the foreign agent come to my lecture next week where i will read this material again assuming that it is not classified that in your view would be a st amendment protected act unless there's a specific intent to use the public presentation as a subterfuge to pass the technical data that would still be conduct that would still be prohibited but if i may the way to resolve this case is one of two things either just simply narrow the i part of the way the th circuit did stag wants to do is to talk about material that is in the public domain is that now falseness he now and is he now saying he wants to talk about material that is not in the public domain primarily wants to talk about material in the public and i don't care what i can see is made up can we primarily wants to talk about what does he want to talk about i'm sorry writer he also wants to aggregate data and not simply collect it and aggregating data even if the doubt is originally in the public domain if you if you modify it if you add material to it that is considered not in the public domain and so that would be at issue what rule that says that that's the way the government interpret it that's the way there is no it rule that says th no rule that says that aggregating data that there's a there was a notice that said it would be a rare circumstance that aggregate would be unusual and remember exactly what the word was that aggregating data would not would not take it out of the public domain but but but the the rule says that public domain data is is is not subject to licensing you're right your honor but the government has specifically said in this case in the district court but the aggregation mr stagg intends to do may be subject to the regulations of the pre publication which is no longer all right with you if we say they're wrong we have to say that it is unconstitutional for them to interpret it a particular way for you to be satisfied and the fact that they are making stuff up and this court says they're making it up it's not in the regulation leaves you still with a case or controversy as to whether if we are wrong in our interpretation of the statute and they are right then that hypothetical state of affairs would be unconstitutional just to an extent but i do think your honor if this court were enter a judgment in stagg's favor that says the pre publication requirement doesn't actually exist and can't be enforced i think that resolves i don't think that's what i said i think what i said i'm talking about the public domain speech and public domain is part of that aggregations part of that internet is part of that and it's not just confined to the public domain the government has sort of shifted its position now to say well well maybe printed publications aren't required maybe they're all public domain but the internet is not going to be asking them about why the internet is not in a library right now as we most people these days who go to public libraries and material available in public libraries exempted as public right most people go to a library at least young people not to look at books or magazines but to look at the little machine in the corner that lets them access the internet if they don't have one at home that's that's their problem i do think the court could avoid the constitutional issue as i said by making a ruling that says there is no pre publication requirement that applies to your speech i think that is you know voiding the constitutional issues so much although there are circumstances in which we'd have to do that if there were close question but what i'm interested in is what you have a case or controversy or about about and what it is that this gentleman actually wants to do that gives him standing to challenge this and that also it seems to me has been something of a shifting target because from the beginning we've been told that the main thing here is is that the government wants to regulate material in the public domain a position from which they have now receded and as i understand it and which is what the regulation actually says so it's not just information already in the public domain he wants to be able to publish technical data into the public domain that's part of it and that for thirty one years was not regulated by the state department and more importantly is still in the parallel scheme that the commerce department has not regulated the commerce department has made it so state has dominion over certain things commerce over others palmer says that if you publish technology we don't regulate it does your challenge know somebody else and what is the commerce department i know commerce has dominion over certain things that's part of what happened in the defense distributed case the government made the determination that the you know three d printing of weapons is within the commerce department  and they don't have a pre publication license requirement so our point is that you have an inconsistent sort of illusionary requirement here that the government be able to take material from the public domain and republish it he wants to publish technical data to certain extent into the public domain and he wants to be able to aggregate technical data in a new form my aggregate and modify  and maybe you know these regulations are perhaps not as as clear as they could be but if he puts two pieces of technical data into the same document that's aggregation in your view if it's just cutting and pasting then it probably would be ok under the even the governance of the reputation but if he takes it and explains it if he adds technical data if he takes a piece of one blueprint and says this is for this and this means this and then takes another piece of a blueprint and says this is for the other thing and this means this and together they do a new thing that's new technical data and that would be regular technical right right any why isn't that just that's not really really getting anything out of the notion of aggregation and modification that makes this much broader than it used to be if you say you know what here's some stuff that's in the public domain like einstein's theory of relativity or something or something that niels bohr wrote and here's some technical data about nuclear weapons that somebody has already published that's out there in the public domain here's another piece that's in the public domain now put this together mr terrorist and anyone in my audience and now you can create a new kind of technical  nuclear weapon and here's how to do it it's facially unconstitutional for the government to say that i shall not do that subject to if the government says well we actually want the french to know about this so we're authorizing you to go tell the french government this information as long as it is a general public presentation and i want to be clear here as long as a general public ok get out your face and get back to get back to your facial challenge to deemed export that means that the government this statute is unconstitutional as to all or virtually all applications including that somebody could give a public lecture on how to manufacture a nuclear weapon steering clear of classified information but using the technical data that somewhere in the files of whoever makes nuclear weapons for the government with or whoever makes them and could gives that lecture right that that is that a legitimate application of this statute that one so you're saying is right it would be unconstitutional if you need a license to do it but with respect your honor at the instructions for how to build a nuclear weapon are online on multiple different websites and they're not being regulated by the state department all right the new version of your weapon that they don't have yet come out i mean let's face it i mean if you're saying that this scheme is unconstitutional as to virtually all applications or at least as to so many applications that is far out ranks any possible for unconstitutional application and you're not telling us what your guy is actually planning to do and therefore we should strike down the entire scheme as unconstitutional because it doesn't have procedural safeguards if the state department wants a constitutional scheme have judicial review limited discretion and a thirty day timeframe to get the decision done that's what we're saying that's what the leak would in friedman require ministry and overview and then if you try to seek that information through for you and the government invokes exemption one for national security that is judicially reviewable so there is at least at some level in that context i have this problem you have not you have not shown that your client is adversely affected by all of this because you haven't shown how your client intends to use these materials you haven't but you have been made part of the record earlier in your argument you said a judge feel i told you you didn't need to do that for official challenge and that doesn't prohibit you from putting in the record the information that we might find necessary to a showing that you are adversely affected and therefore have standing to make the facial challenge so just as all my client did not want to put that in the record because he doesn't want to be limited to certain specific pieces of information that would almost be like the pre publication wouldn't you wouldn't be he wouldn't be limited to it if if he if he said if he said this is obviously not everything that i want to do but these are examples sufficient to show that i am adversely affected if if as judge fellow concluded he is not he has not shown that he's a and you do anything that would give rise to the licensing obligation that he's not adversely affected and he hasn't shown that he is subject to license to responses orders of all things to do st of all the government has taken the position repeatedly that if you believe that you need a license under the current government's current interpretation then you need a license and client declared in the district court that he believed he needed a license and so he's clearly within the gannett ambit of the government's regulation moreover your honor this court and the district court have addressed my client standing i think four or five times and each time concluded that he does have standing because he has said that he wants to do all the things that i just discussed with judge lecture that he wants to be able to publish republic stuff in the public domain publish into the public domain i that when we did that there was we were talking about a situation where he was then saying he wanted to use only material that was in the public domain and now things have changed because i don't just said he wants to publish things into the public domain that are not there already right ok right that means that helps his standing in some time respect i think it does but but in any event i think he clearly has standing to do this i think again there are two ways the court can simply solve this problem by now writing the construction so it doesn't apply to pure speech which is what the th circuit did in adler and that's been the long line circuit ever since the nd thing they could do is simply say it's unconstitutional because it lacks procedural safeguards who are the rd thing which i think judgment you were getting at is it could interpret it and say as properly construed there is no pre publication requirement that applies to speech that and that is that about  that we can solve this problem by declaring chunks of this unconstitutional as we don't want we're declaring that the government's interpretation of it is simply wrong at the court to do that when the court can't do is what the district court did which is to say well we think part of the government's interpretation is wrong and because of that we're not going to give any relief to mr stagg because that doesn't make it that doesn't set clear precedent it doesn't give my client rel doesn't make clear what the standards are going forward so that the one point on standing i'd want to add just just briefly is that technical data is what's at issue here  whether it's in the public domain or not and that is part of the complaint and therefore that further buttresses his his standing position one thing i also want to make clear if i may i know that i'm out of time so be very  brief this does involve course speech because the speech the technical data that we're talking about could be published in books my client wants to publish it in books put it on websites talk about it publicly there's an anecdote that that he told me that back when he was at the state department doing this classification one of the things that was considered technical data was a technique for shooting cars from helicopters if that technique were in a hollywood movie the hollywood movie people look potentially be subject to the i taught are for using that technique in a movie if the new york times were to publish a review of that movie and describe the technique in the review to the new york times with the attention to be subject to the i talk i could face criminal made should influences us in any way i mean it's obvious that if you put into a movie or into a into a book or into the new york times stuff that's forbid not our stuff that you need a regulation for the fact that it's in a movie or in a book isn't an exemption from regulation it's not but it triggers it even more strongly triggers the procedural protections that we're talking about judicial review limited discretion a specified period of time get an exemption from you know get an exemption from stuff that you're not allowed to do by doing it in a movie or in the new york times you know total of all you're absolutely right my point though is that this does affect poor speech and so the cases that deal with prior restraints of course speech all apply with full force in this case and i see that my time is up if if the court doesn't have any further questions i'll you know you'll have an opportunity for rebuttal mr rosenberg you good morning and may it please the court my name is tommy cutters and scott from the united states attorney's office for the southern district of new york appearing on behalf of the department of state the directorate of defense trade controls and the secretary of state i think it's important to as an initial matter step back from the narrow reading of the i tars technical data provisions that the plaintiffs suggest and focus on the normal operation of the law because against which stack is mounting a facial challenge because stag is seeking to have the last truck down as a facial on official basis he is not asking the court to review the law as applied to him and he has not provided the basic information necessary for the court to do that and this is what i was puzzled about and i'm sure i think not by mr rosenberg's fault for not trying got an answer exactly as to what it is to be struck down but i think he said he is not challenging the entire structure of the arms export control act or even of i tour he is challenging the t serves essentially as the functional equivalent of an item on the u s munitions list because it's the blueprints the know how the specifications that would permit our foreign adversaries to produce those those items on the u saying is that as best i can make out the deemed export provision which applies to giving a public lecture cannot be applied constitutionally period and although you know he was a little dicey of nuclear weapons if it weren't already out in the public domain etc i think he's saying that there is nothing even if it is technical data that is the equivalent of how to make the weapon that could be prohibited from export and that there that even if it is the equivalent if you are speaking it in a public lecture that's what he says is automatically unconstitutional it doesn't matter exactly which technical data he wants to talk about that's the kind of as applied part but by deeming it to be an export to give a lecture in public and i think he's also distinguishing intentionally giving that lecture to one foreign agent but so long as there is a requirement that applies to public lectures without the safeguards from prior restraints that is facially unconstitutional do you recognize that  the deemed export provision as it's written in the i tar and the diff definition of export has been amended during the course of the this litigation however in in substance the deemed export for vision generally applies to the same thing and that applies to providing technical data to a foreign person in the united states no it is not specifically targeted at providing a lecture however if it is a lecture and there's a four person in the audience then yes that would be that would be a violation of the i talk but that what you're saying is if it does apply it is as applied that is a specific application of the regulation the law on its face prohibits exports of technical data and among the definitions is the deemed export provision which is providing to a foreign person in the united states and the normal application of the i tourist export provisions related to the i tar they apply to circumstances in which defense contractors and manufacturers send blueprints to their to their factories a prod for the production of fighter jets they apply to circumstances in which within the united states  such contractors may have foreign employees that need the appropriate authorization is necessary to allow sharing technical data with such individuals these are the our needs to be read for what it is which is a regulation that is intended to protect our national sick and to prevent the sharing of items on the u s munitions list and technical data as this court has recognized which functionally serves the same purpose from foreign persons foreign countries and foreign adversaries was it covered the situation th lynch presented in the hypothetical or at least his understanding of what your adversaries argument was that is a lecture given which includes information and at  which you know maybe a foreign person if there is a foreign person at the lecture then yes that would be considered an export of technical data if it is i took control technical data that is not otherwise in the public don't know if you gave a public suggests it is when pieces as as judge lynch suggested when pieces of information that may be in the public domain are aggregated by an individual with the intent of creating a defense article that individual most likely has technical know how that is infused into the technical that the public domain information that creates new technical data a situation in which  would be helpful of the regulation set that i suppose because it sounds to me like there's very little that a lawyer could do at least your typical modern man mr stagg is not your typical noir but an engineer  weapons designer might be in the position of being able to aggregate technical data that's already in the public domain into a new weapons system but it's a little hard for me to understand how somebody whose interest is in briefing clients about what is allowed and what's not allowed is ever going to be in that situation and i and the government has never taken the position as as mr stocks counsel asserted that modification of problem materials does not without more remove the materials from the public domain and so it is a question of that without more so if the government were to try  to it's a question of is more than what is in the public domain being infused so if nothing more is it what were you reading from when you said mere aggregation without more what is that from oh there it is and join appendix this was this puzzles me as as well the government did not cross appeal in any way from anything the judge failing said but can anybody anywhere rely on judge taylor's opinion  in confidence that the government is not going to nevertheless say that they violated the regulation even if they come within the way judge fail interpreted the regulation so the government has as your author has noted not appealed any portion of that opinion but of course that opinion is not binding on a district judge even in the eastern district of new york or the southern district of new york let alone in the  th circuit or the th circuit that is correct but the government has not has accepted that ruling indeed in it when you get there you say they've accepted that that ruling for whom are you speaking at that moment when you say that i am speaking for the department of state d t c for my client and does anyone and do we have to write that into an opinion and say this is what we were told by the government that this is the state department's opinion because otherwise there's no one else in the world is going to know about what you just said well the the d c c has already issued in advance of the district court's opinion had issued this response to the frequent frequently ask a no that is that is the one that refers to print information coming from the public domain let me ask you about the public domain as well because i found judge felons position a little unclear of the internet and what on the internet is in the public domain and what is not because she said and i think she's right about this all of the boundaries of it are a little unclear that some things on the public domain are let out on the internet i'm sorry are like libraries i mean this is quite literally true and fact literal libraries operate on the internet you might be able to look at books and things from a university library without going to the library by going on the internet and looking at it but other things on the internet and i sort of imagine she has leaks in mind are not libraries and the same time when i've read the regulation i see  public domain means information which is published and i don't know unless you think it has to go through fairest rights and your rule in order to be published that means made public so information which is published and which is generally accessible or available to the public at libraries open to the public now forget anything but brick and mortar physical libraries the way the the very branch i went to as an eight year old in queens in that public library there is a terminal that connects to the internet and it may not let you get pornography but all that it lets you get to wiki leaks so why is the internet anything that's on the internet not published information that is available to the general public at libraries that is  natural but why is it not the right reading that regulation because ron i would note that at the time that that this public domain exception was written libraries there was not the same prevalence of the internet libraries i got of the library there is a book it's got technical data and it can be published up to somebody i can even put it on the internet there's a magazine or a scholarly journal and republished that technical data and put it there may be a video disk you probably remember those big things that look like thirty three m regulation they still got some of those in libraries and machines that can play them if that has technical data on it and it's in a library presumably i can put that onto the internet and republished it if it's a v h s tape if it's a cd that's in the public libraries collection i take it i can use that but i can't use something that's on something else that's in the public library because they didn't have  when this regulation was written is that anybody who's looking at this it seems to me is perfectly entitled to say public domain means published information that's available out of public library which anything on the internet is i would posit that the more natural reading of what is what is at a library and what is available to the public at a library or from which public the public can obtain documents refer to refers to physical actual physical materials at that library now judge fan i don't think that's generally accessible at a library does not mean things that are generally accessible at a library it means things that are between hard covers or soft covers or in magazines s tapes the cd rom yes no but the internet certainly not well because as judge failon noted in her opinion the nature of the internet is different th the definition of a library the the library definition of a book is different than the definition of a library but a book is available in a library and so is the internet and a library as she i mean i'm not sure what more i can say than the that the internet is a different animal than my understand why the internet is different when you're worried about something being put on it i know perfectly well that there is a big diff anybody who has a criminal record anyone who owns property anyone who's ever had to fill out financial disclosure forms knows that there's a big difference between information available to the public in the basement of the courthouse and available to the public on the internet and if you're worried about things getting out i understand why there's a distinction that says just because it's available in the basement doesn't mean you can put it on the internet but what are you worried about when it's already on the internet why can't someone republic in a book where it's less accessible something that's already accessible to the public via the internet at every public library in the united states well because there are no standards to ensure what is put out on the internet it limits the state department's ability to have things to try to have things that are dangerous and the have which would it would be problematic it limits their ability to take that to have that removed from the internet it could also be something that's in some esoteric corner of  is information to the berkeley free journal which is handed out mostly on street corners but happens to be also collected in the berkeley public library with all its back issues someone can go in there take that material and put it on the internet and that would be fine because that's a republican information that's available on paper in a library but someone who wants to do the converse and go to the library find something on there that is available to the public and then lecture to a bunch of lawyers and aerospace engineers about how the works couldn't use as an example something that he found on wiki leaks is web page and that's rational and that's the most natural interpretation of this regulation that that is the government's position but i would note that this is a facial challenge and this is looking at one very very narrow interpretation and one very narrow circumstance so if there was a specific factual circumstance in which mr stack wanted to sue and he wanted to present to us what it was and where it came from then that would be the opportunity for the court to  ruling i would note however that for that the idea that there is confusion about the internet being part of the public domain it certainly was not a position that mr stack's council took when he was here at the preliminary injunction stage in fact at minute forty five of the transcript in response to judge graduates questions he explicitly said the internet is not part of this because the regulations understandable and has it clear and certainly it was clear to mr stack's counsel several years ago and i guess this is  the i get the fact that there is something of a sliding scale the tween a pure if they shal challenge to the entire body of the regulations and a very specific as applied challenge to this is what i want to do precisely and as applied to me it is unconstitutional but there's kind of a space in between there where the p seems to want to position himself by saying as we were discussing earlier i'm making a facial challenge to a piece of the regulatory scheme suppose we call that and as applied challenge how does that change anything then what are we what are we doing if we're addressing a sufficiently narrow challenge because the one thing we know he wants to do whenever he's going to do whatever he wants to do he wants to do it in this kind of public lecture hall where he doesn't have a passport control at the door and he says it's unconstitutional to apply a licensing regime to something to discussing any kind of technical data in that form is that and challenge that we have before us whether that is something that requires the specific safeguards that have been applied to other forms of piracy the factual record for such a challenge has not been developed he has we don't know what it is that he wants to preside and how he and we should assume we should assume it's the worst possible technical data the worst for him that it could be but and then but that could be addressed facially them that specific argument is that right he'd have to meet the standards for a facial challenge of course substantively to succeed but is that something that is before us do you think i would argue that the would looking at a regulation and looking to whether it burdens speech in appropriately one must look to the normal application and the plaintiff cannot choose this very specific  circumstance in which he thinks there may be a constitutional problem but he does not reveal the specifics that would allow the court to assess it because the normal application would certainly  component it would apply to all these other kinds of the very same sort of export and then you know giving it to the foreign literal foreign company but giving it to a foreign engineer who works for them all of these sorts of things adversely affected by showing what he intends to do in order to be eligible to raise the facial that is the position the government has made repeatedly throughout this litigation we sought jurisdictional discovery before the district court and were denied that request the government has has stressed that point judge fail in the way she handled it said that miss that us stags standing was limited to challenging a very the sliver of basically challenging the the public domain exception and she found that that because the information that stack had asserted that he wants to republish for the pup from the public domain did not require a license therefore there was no prior restraint impacting if we if we reach the truth that he has not shown because he  challenge if it is true that one needs even to make a facial challenge one needs to be a person who is aggrieved by the application of the rule has been challenged just does not essentially move for well this court must satisfy itself and can do so independently and if if not raised at this stage by the government that standing your consists at every at every stage of the at every stage of the litigation so yes that would be the end of the standing number one in prior restraint cases there is a much lower threshold for standing that's what this court said in its last opinion that certainly with the district court repeatedly said mr stack has absolutely established that he would be aggrieved because he wants to give these public lectures he wants to be able to publish on the internet the government has already admitted that information on the internet is technical data there's no question he's aggrieved here there's no question of their standing with respect to the internet actually sorry with respect to judge lynch's question about what is the general application so very clearly we are not challenging anything but the application of the pre publication license requirement to speech that's the facial challenge so the other examples judge lynch that you gave with respect to conduct he handing it to a foreign national etc that's not a normal application that's something we see that's beyond the ambit of this case and our view is that everything why isn't that an as applied challenge and i'm trying to stand exactly the different matters but you are not saying that as written the deemed export provision as applied to technical data is always and everywhere unconstitutional because the deemed export provision includes giving the information in a targeted way to a foreign agent which you are saying there is a particular kind of thing that this applies to and as to that kind of thing it is unconstitutional is that not correct yes but that's not an as applied a challenge because we're attacking it with respect to pure speech in all of its variations i don't know what you mean by in all of its variations the actual provision that you're talking about refers to technical data as defined specifically in the regulations and it says what is a deemed export and a deemed export is conveying the information to a foreign person in the united states right yes that's what it says on its face and the term facial challenge but you are not it seems to me saying that there is nothing or not many things any way that would constitute a deemed export under this provision the prior restraint of which would be unconstitutional what we are challenging is the application to publication  and as applied you are challenging the application of that regulation in a particular context i don't you see and i just i mean maybe you can help me by explaining why you want to fight that what is the difference between calling it an as applied challenge and calling it a facial challenge at least so long as your client is doing the application that you are challenging so i don't know that it makes a difference depending on the way you're thinking about it but i want to be clear i want to know what you're thinking late would and friedman say is the challenge of prior restraint you need to raise a facial challenge that because prior restraints are so now and you know it doesn't help to say there is case law that says to challenge your premise don't you need to do a facial challenge and then say therefore i'm calling what i'm doing a facial challenge if it's not we think it is because it is a challenge to the application to any kind of publication so there is conduct right which is one bucket there is publication which is another bucket this is the exact distinction the judge jones made in her opinion a defense distributed if one is saying something to somebody why isn't that speech if it's directly to that person the way the regulations operate that is conduct that is done with the intent to provide technical data to a specific person or entity that is not general publication that's the distinction that the state department made for thirty years that's a distinction judge jones made in defense distributed that's the distinction that led the government to settle defense distributed and pay its attorneys  the plaintiff's attorneys fees i mean that's the distinction that's been used in this space and so that's why i mean hearing that distinction ultimately the judge lynch if you want to write an opinion that says it's an as applied a challen want to write any opinion i want to understand your arguments and i want to understand what the law is ok ok don't ask me what i want to write i don't want to write anything i want to understand what the issue is before me right and what you are saying is that you want to challenge the deemed export provision as applied to publication any kind of dissemination that is not targeted to a particular foreign person is that fair to say yes and it but but to put a gloss on that the way the publication has been interpreted over the years and i've given you examples of that but yes it's not directed to a certain person i also gave you  example of that if you use general publication as a ruse to provide it to specific foreign persons or entities that could be regulated but we're talking about general publication of the public on the internet or in a book or in a movie or in an article that is what we're talking about here and we think it's still a facial challenge but i understand the confusion and i'm not trying to know what to do i'm trying to explain this because i think it was a little murky on this i do but i think that we envision their size is a visual challenge to that publication bucket that i was trying to distinguish from the conduct bucket and therefore we see every application to publication to pure speech is unconstitutional without the procedural safeguards and that gets me if i may to the national security point that was part of the discussion right if the government can say a prior restraint is justified because of national security but in doing that it's got to include the procedural safeguards and i would note in the national security context and the concerns about nuclear weapons right that again this was not imposed by state for thirty one years there's not a single example in the record of any befell in that thirty one years commerce has the same power also to regulations now nothing from commerce has shown harm in the public record so there's no justification to say this is essential this publication part of this is essential for national security because it's never caused the harm when it wasn't imposed i would like to just read there were a standard of review or a court review process build into this does a license for various criteria world peace or otherwise advisable and otherwise advisable to broad i think you'd have to put specific criteria in there and if they say the criteria was you know specific harm to national security that might well satisfy it and then there's got to be a time limit that's that's part of friedman is that you can't just go on the way of the process works now is there state department review that can take a while but then there's also defense department review that's open ended there may be a requirement to notify congress it's going to be something that says this has to be done in a limited period of time that's what would satisfy it i want to just make a couple quick final points i see my time is up i want to ask you something yes you said answer direct answer to my question you seem to say that reference to technical data solve the problem whether the person has standing has suffered an injury but the definition isn't technical  data when that technical data is in the public domain it's not subject to the licensing requirement is not correct something that right you can buy technical data so right might be considered technical data and subject to regulation if it's material it's in the public domain it's not subject to the licensing that may be correct judge of all but the government just today said that publishing in the internet is technical data and it's not subject to the public domain exclusion we read that doesn't make sense but that's their position and mr stagg in his declarations have said repeatedly i want to publish the stuff on the internet no no no it's not a question of what he wants to do it's a question of where he finds it it's both right i understand but let's not let's be absolutely clear we're not saying we're not discussing the question of what could he published on the internet that seems to be a separate matter and the issue at least that i was discussing with the government is what is in the public domain long as it's pure a speech and publication and not directed or subterfuge to direct it to a foreign entity yes and why isn't that also automatically direction to be given everybody has access to the internet because you need is a specific intent requirement if the government could show that somebody had a specific intent to use the internet to pass information to specific foreign entities right about not specific what about and i believe that information is free right and should be made free to all people in the world and i think that would be that should not be regulated that's popular publication i mean it's not a subterfuge it's not it's not an export of something if you're just perfectly out in the open i i see no reason why people in pakistan and south korea and north korea should not have access to this information about how to build weapons so i'm going to disseminate it right read end of story i think that's your speech the government can regulate it but it needs the procedural protections or if it's classified or there are other laws that may apply but this shouldn't apply to that without those protections i think i think that's right one thing i do want to emphasize though is my opponent here did not say and by the way number one we're not going to apply any of this against that there's no disclaiming of the possibility of the aggregation started because they don't know what he's going to do that would be very hard point to say that they're never going to do anything to stagg regardless of what he does what response i want to make though on the technical data part you would make the comment that when you aggregate you may need some skill but in defense distributed the court noted that a nd year law student was capable of putting together the materials that were technical data in that case and so that's not a very satisfying i maybe not everybody agrees with judge jones about the appropriateness of allowing people to print three d weapons maybe not but the did is not satisfying for a number of reasons and i think that feeds into our theme that we do very much hope for a decision from this court that at minimum if the court believes that the things the judge fadeout right about the interpretation of the statute are put into an opinion that you know gives declaratory relief and i do think that on the internet as well it's just completely unclear right now and we urge the court to clarify that in any opinion i understand the concerns about standing but again with respect mr stagg has made clear that he wants to publish technical data whether it's in the public domain or not that we don't believe that the government's differentiation between public domain and not public domain information makes any sense right now and we don't think that judge phase decision clarified that to the extent necessary so that not only can my client but others rely on that for standards go forward thank you thank you very much thank you both will make your decision in this case