15

DANIEL J. BERNSTEIN
Department of Mathematics, Statistics, and Computer Science
University of Illinois at Chicago
Mail Code 249
Science and Engineering Offices, Room 322
851 S. Morgan Street
Chicago, IL 60607–7045(312) 996–3041
Best address: djb-legal@cr.yp.to

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Plaintiff Pro Se

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA

910DANIEL J. BERNSTEIN,

C 95–00582 MHP

11Plaintiff,
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v.
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UNITED STATES DEPARTMENT
OF COMMERCE, et al.,Defendants.

PLAINTIFF’S MEMORANDUM
OF POINTS AND AUTHORITIESIN REPLY TO
DEFENDANTS’ OPPOSITION
Date: October 7, 2002
Time: 2:00 p.m.
Place: Courtroom 15, 18th Floor

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Plaintiff’s Reply to Defendants’ Opposition

C 95–00582 MHP1TABLE OF CONTENTS

2I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3

II.

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4

III.

CURRENT REGULATORY FRAMEWORK AND IMPACT . . . . . . . . . . . . 3

5A.

Plaintiff’s Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

6

B.

Plaintiff’s Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7C.

The Current Encryption Licensing System . . . . . . . . . . . . . . . . . . 5

8D.

Construction Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

9

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10

IV.

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THE PLAINTIFF HAS STANDING . . . . . . . . . . . . . . . . . . . . . . . . . 6
A.

The Plaintiff Has Standing to Challenge the Notification Requirements . . . 6

12i.

Prohibition of Collaboration at Scientific Conferences . . . . . . . . 7

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ii.

Notification Requirement for Private Email . . . . . . . . . . . . . 8

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iii.

Notification Requirement for Web Publications . . . . . . . . . . . 8

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B.

The Plaintiff Has Standing to Challenge the Licensing Requirements . . . . 8

16

i.

Licensing for Answering Questions . . . . . . . . . . . . . . . . . . 9

17

ii.

Licensing for Postings to Sci.Crypt . . . . . . . . . . . . . . . . . . 9

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iii.

Licensing for Assembly-Language Programs . . . . . . . . . . . . 10

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iv.

Licensing for Scientific Journals on the Internet . . . . . . . . . . 10

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C.

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V.

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The Notification Requirements Cannot Be Severed from the
Licensing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

EAR IS CONTENT-BASED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A.

The Distinction Between Communication and Use . . . . . . . . . . . . . 12

B.

The Connection Between Communication and Use . . . . . . . . . . . . 13

C.

The Test for Content-Neutrality . . . . . . . . . . . . . . . . . . . . . . . 13

VI.

EAR IS UNCONSTITUTIONALLY VAGUE . . . . . . . . . . . . . . . . . . . 14

VII.

EAR IS AN UNCONSTITUTIONAL SEARCH AND SEIZURE . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Plaintiff’s Reply to Defendants’ Oppositioni

C 95–00582 MHP1TABLE OF AUTHORITIES

2

Cases

3

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) . . . . . . . . . . . . . . . . . . . . 7

4American Booksellers Assn., Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985),
aff’d mem., 475 U.S. 1001, reh’g denied, 475 U.S. 1132 (1986) . . . . . . . . . . . . . . 13

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Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 2002 U.S. LEXIS 2789 (2002) . . . . 13
Babbitt v. Farm Workers, 442 U.S. 289 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 5
Bernstein v. Department of Justice, 176 F.3d 1132 (9th Cir. 1999)(“Bernstein IV”), reh’g en banc granted and opinion withdrawn, 192 F.3d
1308 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bernstein v. Department of State, 922 F. Supp. 1426 (N.D. Cal. 1996)(“Bernstein I”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Bernstein v. Department of State, 945 F. Supp. 1279 (N.D. Cal. 1996)(“Bernstein II”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Bernstein v. Department of State, 974 F. Supp. 1288 (N.D. Cal. 1997)(“Bernstein III”), aff’d sub nom. Bernstein v. Department of Justice, 176
F.3d 1132 (9th Cir. 1999), reh’g en banc granted and opinion withdrawn,
192 F.3d 1308 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 5
Brandenburg v. Ohio, 395 U.S. 444 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Chamber of Commerce v. Federal Election Comm’n, 69 F.3d 600 (D.C. Cir. 1995) . . . . . 6City of Ladue v. Gilleo, 512 U.S. 43 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 2
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) . . . . . . . . . . . . . . . 6
Cohen v. California, 403 U.S. 15 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Doe v. Bolton, 410 U.S. 179 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . 2
Florida Star v. B. J. F., 491 U.S. 524 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 2
Freedman v. Maryland, 380 U.S. 51 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . 8
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Herceg v. Hustler Magazine, Inc., 814 F.2d 1017 (5th Cir. 1987), cert.
denied, 485 U.S. 959 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Plaintiff’s Reply to Defendants’ Oppositionii

C 95–00582 MHP

1
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3
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5
6
7

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U.S. 557 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hustler Magazine, Inc. v. Falwell, 486 U.S. 46 (1988) . . . . . . . . . . . . . . . . . . . 13
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) . . . . . . . . . . . . . . . . . . . . 10
Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 3
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . 13
Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) . . . . . . . . . . . . . . . . . . . 14

8

Rice v. Paladin Enters., Inc., 128 F.3d 233 (4th Cir. 1997), cert. denied,
118 S. Ct. 1515 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

9

Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984) . . . . . . . . . 11

10

Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd.,
502 U.S. 105 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

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Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) . . . . . . . . . . . . . . . . . . . 2
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) . . . . . . . . . . . . . . 13
United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199 (1968) . . . . . 6
United States v. Helmy, 712 F. Supp. 1423 (E.D. Cal. 1989) . . . . . . . . . . . . . . . . . 8
United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . 8
United States v. Martinez, 904 F.2d 601 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . . 8
United States v. Mendelsohn, 896 F.2d 1183 (9th Cir. 1990) . . . . . . . . . . . . . . . . 13

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United States v. Moller-Butcher, 560 F. Supp. 550 (D. Mass. 1983) . . . . . . . . . . . . . 8

20United States v. Spawr Optical Research, Inc., 864 F.2d 1467 (9th Cir.
1988), cert. denied, 493 U.S. 809 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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22

Virginia v. American Booksellers Assn., Inc., 484 U.S. 383 (1988) . . . . . . . . . . . . . . 5

23

Watchtower Bible and Tract Soc’y, Inc. v. Village of Stratton, 122 S. Ct.
2080, 2002 U.S. LEXIS 4422 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

24Regulations

25

15 C.F.R. §734.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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15 C.F.R. §734.7(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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15 C.F.R. §734, Supplement 1, Question A(5) . . . . . . . . . . . . . . . . . . . . . . . 1128

15 C.F.R. §734, Supplement 1, Question G(2) . . . . . . . . . . . . . . . . . . . . . . . 11
Plaintiff’s Reply to Defendants’ Oppositioniii

C 95–00582 MHP1

15 C.F.R. §736.2(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 11

2

15 C.F.R. §736.2(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

315 C.F.R. §740.13(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10, 11

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15 C.F.R. §740.13(e)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9515 C.F.R. §740.13(e)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

615 C.F.R. §740.17(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

715 C.F.R. §740.17(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

815 C.F.R. §740.17(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

915 C.F.R. §740.17(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1015 C.F.R. §744.9(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7

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15 C.F.R. §764.2(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1215 C.F.R. §772.1, definition of “encryption source code” . . . . . . . . . . . . . . . . . 101315 C.F.R. §774, Supplement 1, ECCN 5D002 . . . . . . . . . . . . . . . . . . . . . . 4, 11

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15 C.F.R. §774, Supplement 1, ECCN 5E002 . . . . . . . . . . . . . . . . . . . . . . . 11

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Plaintiff’s Reply to Defendants’ Oppositioniv

C 95–00582 MHP1I.

INTRODUCTION

2Five years ago, the Defendants 1 repeatedly claimed that their regulations were much3

less restrictive than Prof. Bernstein’s analysis revealed. 2 They take the same approach now. 3

4The Defendants’ claim did not, and does not, withstand scrutiny. There is actually no5

serious dispute as to the meaning of the Export Administration Regulations (hereinafter “EAR”)

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and the effect of those regulations upon Prof. Bernstein. 4 There is no dispute that, for example,

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when Prof. Bernstein shows “EI” documents to a foreigner, whether in private discussions or

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in public web pages, the government demands copies of those documents. 5

9

The Defendants attempted, and attempt, to bamboozle the Court by repeatedly citing

10

irrelevant exceptions in the regulations. 6 As already discussed in Prof. Bernstein’s opening

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Recent filings have not stated the complete list of defendants. Prof. Bernstein originallysued State, ACDA, Defense, Commerce, NSA, and various individuals; he subsequently
added Justice, CIA, and Energy as defendants. See Complaint (1996) (docket no. 1);
First Supplemental Complaint (1997) (docket no. 118). The parties agreed to dismiss
the individuals; furthermore, this Court dismissed Justice, CIA, Energy, and State. See
Stipulation Dismissing Claims (1996) (docket no. 38); Bernstein v. Department of State,
974 F. Supp. 1288, 1309 (N.D. Cal. 1997). Evidently the current defendants are ACDA,
Defense, Commerce, and NSA. The Court’s reasoning would also justify dismissing
ACDA and Defense, leaving Commerce and NSA as the defendants.
See, e.g., Defendants’ Opposition (1996) (docket no. 71), at 8:16–17 (“This is plaintiff’s
own theoretical speculation”); Id., at 7:22–26 (“The government has never determinedthat plaintiff must obtain a license before teaching a class on cryptography”); Defendants’ Opposition (1997) (docket no. 132), at 7:13–14 (“Plaintiff’s construction of theregulations is divorced from reality”).
See, e.g., Defendants’ Motion to Dismiss Plaintiff’s Second Supplemental Complaint or,in the Alternative, for Summary Judgment, and Memorandum of Points and Authorities(2002) (docket no. 190) (hereinafter “Defs.’ Motion”), at 11:11–12 (“both the governing
regulations and the authority responsible for enforcing them have explicitly advised him
to the contrary”); Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment(2002) (docket no. 195) (hereinafter “Defs.’ Opp.”) at 3:20–22 (“based on his own
unsupported theories, not on how the governing authority applies its regulation”).
See Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Motion
for Summary Judgment (2002) (docket no. 184) (hereinafter “Pl.’s Motion”), at 3:13 to
13:12 (analyzing impact of EAR).
See, e.g., Defs.’ Motion, at 4:13–14 (“must notify the government” of publication); Id.,
at 22:26–28 (alleging an “even more compelling” interest in private communication);Pl.’s Motion, at 5:20 to 10:9.
See, e.g., Defendants’ Opposition (1997) (docket no. 132), at 7:8–10 (“mere teachingor discussion about cryptography, including in an academic setting, is not sufficient toestablish” the §744.9(a) intent). Current examples are discussed later in this brief.

Plaintiff’s Reply to Defendants’ Opposition1

C 95–00582 MHP1regulatory analysis, those exceptions simply do not apply to the activities at issue. 7

2For example, the Defendants observe that 15 C.F.R. §736.2(b)(1) applies only to items

3of “U.S. origin,” not foreign-made items. 8 This observation does not change Prof. Bernstein’s

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regulatory analysis; it was already mentioned in Pl.’s Motion, at 6:18–20. The Defendants ignore

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the undisputed facts of Prof. Bernstein’s October 2001 trip to Canada, in which Prof. Bernstein

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refrained from disclosures of U.S.-origin “EI” software. 9

7

As another example, the Defendants attempt to defend EAR’s preferential treatment

8of “printed materials” 10 by pointing out that various activities are now allowed by 15 C.F.R.

9§740.13(e). See Defs.’ Opp., at 18:26–28. But the addition of §740.13(e) did not change the10fact that “printed materials” have preferential treatment.

11

The bottom line is that Prof. Bernstein wishes to engage in many activities prohibited

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by EAR. Prof. Bernstein has refrained from those activities out of fear of EAR. He will be

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forced to continue doing so until the regulations are changed or struck down.

14

II.

PROCEDURAL HISTORY

15The Ninth Circuit, affirming this Court, held that EAR was an unconstitutional prior16

restraint. Bernstein v. Department of Justice, 176 F.3d 1132, 1145 (9th Cir. 1999), reh’g en17banc granted and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999). Judge Nelson’s dissent

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from the Ninth Circuit decision was based largely on a Northern District of Ohio opinion; that

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7
8

See Pl.’s Motion, at 3:13 to 13:12; Bernstein Decl. in Support, ¶¶113–162.
See Defs.’ Motion, at 6:12–13 (“encryption software outside the United States”); Id.,
at 10:22–25. Note that there is no U.S.-origin requirement in 15 C.F.R. §744.9(a).
See Pl.’s Motion, at 5:26 to 6:16; see also Id., at 11:9–17 (comparing §744.9(a) to§736.2(b)(1)).
9 See Pl.’s Motion, at 7:10–18; Bernstein Decl. in Support, ¶¶122–128. Of course, itwould have been possible for Prof. Bernstein to disclose SPRAY to the Defendants
before his trip, but this disclosure would not have covered the experimental variants of
SPRAY that Prof. Bernstein prepared on the way to Canada. See Bernstein Decl. in
Support, ¶123; see generally Id., ¶22 (discussing timing of conference activities).
10 See 15 C.F.R. §734.3(b). This treatment is relevant to, inter alia, the credibility of
the government’s allegations of “compelling interest.” See Pl.’s Motion, at 20:9–22;
Plaintiff’ Opposition to Defendants’ Motion for Summary Judgment (2002) (docket
no. 201) (“Pl.’s Opp.”) at 16:8–12; Florida Star v. B. J. F., 491 U.S. 524, 540 (1989);
Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104 (1979); First Nat. Bank of Boston
v. Bellotti, 435 U.S. 765, 793 (1978); City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994).
Plaintiff’s Reply to Defendants’ Opposition2

C 95–00582 MHP1opinion was subsequently reversed by a unanimous Sixth Circuit panel. See Junger v. Daley,2

209 F.3d 481 (6th Cir. 2000). The Ninth Circuit did not comment on the reasons for granting

3

rehearing. See 192 F.3d 1308 (9th Cir. 1999).

4

The Defendants complain that Prof. Bernstein “cites an appellate decision that no5

longer exists.” 11 However, the Defendants have repeatedly cited Judge Nelson’s dissent. See

6Defs.’ Motion, at 12:23–25 (asserting, without evidence, that Prof. Bernstein’s “emphasis on

7

facial challenges” contributed to the Ninth Circuit’s decision to grant rehearing); Defs.’ Opp.,8

at 15:25–28. Even worse, the Defendants have failed to mention Junger.

9

III.

CURRENT REGULATORY FRAMEWORK AND IMPACT

10A.

Plaintiff’s Activities

11

Cryptography is a large part of Prof. Bernstein’s work. See Bernstein Decl. in Support,

12¶¶10, 30–40, 49–51, 72–77, 78–87, 101–107. It would be an even larger part in the absence

13

of EAR. See Bernstein Decl. in Support, ¶108; Bernstein Decl. re Cryptography, ¶3. In the14absence of EAR, Prof. Bernstein would “export” a wide variety of “encryption items” without

15

government notification or licensing. See Bernstein Decl. in Support, ¶¶113–162; Bernstein

16

Decl. re Cryptography, ¶¶5–7.

17

For example, in the absence of EAR, Prof. Bernstein would post Snuffle to sci.crypt18

for worldwide distribution, without contacting the government; he would place SPRAY on

19

his public web pages, without contacting the government; he would modify qmail to protect

20

messages against eavesdropping and forgery, and would place the modified version on his web

21

pages, again without contacting the government; he would have placed nistp224 on his public

22

web pages without contacting the government; and he would have engaged in collaborative

23

work based on SPRAY with an Irish colleague at the ECC 2001 conference in Canada. See

24

Bernstein Decl. in Support, ¶¶88–100, 83–87, 57–64, 136, 78–82, 122–127.

25
26
27

11

Defs.’ Opp., at 3:6–7. The Defendants also assert that Prof. Bernstein has cited thepanel opinion “as if it were circuit precedent.” Defs.’ Opp., at 3:12. That assertion isincorrect. Prof. Bernstein has indicated the subsequent history in every full citation, as
required by the Bluebook. See, e.g., Pl.’s Motion, at 3:6–8. The Defendants cannot
seriously believe that this Court is unaware of the status of the Ninth Circuit opinion.

28
Plaintiff’s Reply to Defendants’ Opposition3

C 95–00582 MHP1All of these items are covered by 15 C.F.R. §774, Supplement 1, ECCN 5D002. See

2

Pl.’s Motion, at 4:19–25; Bernstein Decl. re Cryptography, ¶¶8–21. Prof. Bernstein will provide

3

many more examples of “EI” software if this case reaches trial.

4

The Defendants assert that SPRAY and nistp224 are not controlled under 5D002. See

5Second Kritzer Decl., ¶¶6, 8. One possible interpretation of this assertion is that the Defendants

6

are using their power to “classify” particular items, specifically SPRAY and nistp224, as being

7

outside 5D002. Unfortunately, ad-hoc decisions do not solve Prof. Bernstein’s problem; SPRAY

8

and nistp224 are merely two examples out of many. See Bernstein Decl. re Cryptography, ¶5.

9Another possible interpretation is that the Defendants are proposing a narrow construc-10tion of 5D002, so as to exclude documents such as SPRAY and nistp224, even though this11

would be contrary to their stated encryption policy. See Bernstein Decl. re Cryptography,

12¶¶22–23. Prof. Bernstein would welcome this development. Unfortunately, the Defendants

13

have not articulated any such construction.

14

B.

Plaintiff’s Intent

15

There are two notable effects of publishing and otherwise communicating instructions:16

first, some receivers follow the instructions; second, some receivers improve the instructions.

17

See Bernstein Decl. re Instructions, ¶¶2–8.

18

The Defendants suggest that Prof. Bernstein is concerned solely with the second effect19(“scientists” or “programmers”) and is blithely ignoring the horrors of the first effect (“users”).

20

See, e.g., Defs.’ Motion, at 19:14–16; Defs.’ Opp., at 18:2–5.

21

That suggestion is incorrect. Prof. Bernstein has, throughout this case, indicated his

22desire for both of these effects: for his instructions to be improved, and for his instructions

23

to be followed. See, e.g., Declaration of Daniel J. Bernstein (1996) (docket no. 63), ¶10 (“I24hope that my publication of Snuffle will help other people protect their computers from attack;25

communicate my ideas to others who might find them interesting or important contributions to26

the field; and subject Snuffle to outside review, testing, evaluation, and modification as part of27

the normal interchange of scientific and technological ideas”) (emphasis added).

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Plaintiff’s Reply to Defendants’ Opposition4

C 95–00582 MHP1C.

The Current Encryption Licensing System

2

According to the Defendants’ encryption policy, “most encryption products require a3

one-time technical review and classification prior to export.” See Bernstein Decl. in Opposition,

4¶5 (quoting policy from web page); Bernstein Decl. re Government Policy, ¶¶2–4.

5

EAR currently has two licensing mechanisms for “EI” documents. One mechanism,

6

which EAR calls “classification,” allows documents to be published, after review and approval

7

by government censors. 12 Another mechanism, which EAR calls “licensing,” allows documents

8

to be sent to specific recipients, after review and approval by government censors.

9

The Defendants are, by their own admission, actively operating both mechanisms. See

10

Pl.’s Opp., at 4:27–28. The Defendants are misrepresenting the facts when they suggest that11

the “EI” licensing mechanisms have disappeared. See Defs.’ Opp., at 6:3–4.

12D.

Construction Notes

13

Prof. Bernstein’s opening brief included a detailed regulatory analysis. See Pl.’s Motion,

14

at 3:13 to 13:12. There was also some discussion of EAR in his opening declaration: his fear

15of prosecution is based on the plain meaning of EAR. 13

16

There is, of course, a difference between a brief and a declaration. Prof. Bernstein was17

careful to avoid legal analysis in his declaration: “My statements in this declaration about the18

effects of [EAR]  are my descriptions of the literal meaning of EAR. They are not meant as

19statements about the legal effect of EAR.” Bernstein Decl. in Support, ¶2.

20

The Defendants blatantly misquote this statement. They omit the crucial phrase “in this21

declaration”; they pretend that the regulatory analysis in Pl.’s Motion was not meant to describe

22

12

23
24
25
13

26
27
28

See 15 C.F.R. §740.17(d); §740.17(a); §740.17(b)(2); §740.17(e). Documents can besent to certain countries, such as France, as soon as the government acknowledges
the classification request; acknowledgments are provided quickly and without review.
However, publishers must wait before sending documents to the Bahamas, Iceland,
Jamaica, Mexico, the Vatican, et al. Publishers can assume approval if they do not hearanything for 30 days, but the censors are free to extend this time or deny the request.
See Bernstein Decl. in Support, ¶¶113–162. Fear of prosecution is relevant to standing.
See Babbitt v. Farm Workers, 442 U.S. 289, 302 (1979) (standing because the plaintiffs
were “not without some reason in fearing prosecution”); Bland v. Fessler, 88 F.3d 729,
737 (9th Cir. 1996) (standing because of fear of enforcement); Virginia v. American
Booksellers Assn., Inc., 484 U.S. 383, 392–393 (1988) (same).

Plaintiff’s Reply to Defendants’ Opposition5

C 95–00582 MHP

1the legal effect of EAR; they assert that this strawman “presents fundamental jurisdictional

2

concerns”; and they put these statements at the top of their brief. See Defs.’ Opp., at 1:5–15.

3

The Defendants later suggest that Prof. Bernstein’s regulatory analysis does not match “how4

the governing authority applies its regulation.” See Defs.’ Opp., at 3:20–22.

5

Given these comments, one would expect to see the Defendants argue that the judicial

6

construction of EAR should differ in various identified ways from the plain meaning of EAR

7(and, perhaps, to see them explain why the Executive Branch has not simply changed EAR to

8match the desired construction). But Defs.’ Opp. does not articulate any such proposals.

9

ARGUMENT

10IV.

THE PLAINTIFF HAS STANDING

11

A.

12

Prof. Bernstein’s basic standing argument is straightforward. EAR requires notification

13

for many of Prof. Bernstein’s planned activities. 14 Prof. Bernstein plans to engage in these14

activities without notification. 15 Prof. Bernstein has a reasonable fear of prosecution: the15

Defendants take notification seriously, and they certainly have not disavowed prosecution. 16

16

14

17
18
19
20
21
22

15

23
24
25
26
16

27
28

The Plaintiff Has Standing to Challenge the Notification Requirements

See Pl.’s Motion, at 5:20 to 10:9. Note that any post-Complaint actions that the Defendants take to reduce EAR’s effect are irrelevant to ripeness. Furthermore, suchactions do not produce mootness unless it is “ ‘absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur’ ”; this is a “stringent”
standard. See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export
Assn., Inc., 393 U.S. 199, 203 (1968)); see also City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283, 289 (1982) (holding that repeal of a law does not moot a challenge tothe law). For the same reason, Prof. Bernstein’s earlier claims against ITAR and EAR
are not moot, despite the improvements that the Defendants have made since 1995. See
Bernstein Decl. re Government Policy, ¶¶5–10.
See Bernstein Decl. re Cryptography, ¶¶2–7. The Defendants may argue that they havealready received adequate notification of Snuffle and other documents filed with the
Court, and that the Court cannot consider Prof. Bernstein’s plans involving documentsthat have not been filed. This argument must be rejected: it would immunize notification
requirements against declaratory First Amendment challenges, contrary to the case law.
See Watchtower Bible and Tract Soc’y, Inc. v. Village of Stratton, 122 S. Ct. 2080, 2002
U.S. LEXIS 4422 (2002).
See Pl.’s Opp., at 4:2 to 9:4; Doe v. Bolton, 410 U.S. 179, 188 (1973) (holding that being“threatened with prosecution” is not required for standing); Chamber of Commerce v.
Federal Election Comm’n, 69 F.3d 600 (D.C. Cir. 1995).

Plaintiff’s Reply to Defendants’ Opposition6

C 95–00582 MHP1i.

Prohibition of Collaboration at Scientific Conferences

2

Prof. Bernstein plans to engage in collaborative cryptographic work with his non-3

American colleagues at scientific conferences: disclosing U.S.-origin “EI” software (and4foreign-built variants) to his colleagues outside the United States, helping his colleagues develop

5“EI”-type software outside the United States, and transferring “EI” software to his colleagues

6

inside the United States, all without notifying the government. See Pl.’s Motion, at 5:20 to 8:7.

7

This plan violates 15 C.F.R. §736.2(b)(1), §736.2(b)(2), §744.9(a), and §764.2(e). Id.

8

The Defendants observe that—as already pointed out in Prof. Bernstein’s regulatory

9

analysis—EAR’s definition of “published information” includes information “released” at an

10“open gathering,” and 15 C.F.R. §744.9(a) has an exception “if the U.S. person providing the11

assistance” is “entitled to export” the software. See 15 C.F.R. §734.7(a)(4); Pl.’s Motion, at

12

12:13–17, 6:3–4; Defs.’ Opp., at 7:7–11, 7:16–17. This has no relevance to Prof. Bernstein’s

13plan. One is not “entitled to export” “EI” software, even if the software is “published,” unless

14

a copy (or equivalent) has been sent to the government. See Pl.’s Motion, at 6:4–13. 17

15

The Defendants also observe that—as already pointed out in Prof. Bernstein’s regula-16

tory analysis—“the mere teaching or discussion of information about cryptography  would

17

not establish” the §744.9(a) intent. See Defs.’ Opp., at 7:11–15. This has no relevance to18Prof. Bernstein’s plan. Prof. Bernstein’s intent has already been established by other means.

19

See Bernstein Decl. in Support, ¶127; Pl.’s Motion, at 6:14–16.

20

The Defendants also state that “academic discussion” is not regulated. See Defs.’ Opp.,21

at 7:26 to 8:2, 8:6–9. This has no relevance to Prof. Bernstein’s plan. The Defendants’ notion

22of “academic” does not include the activities at issue. See Pl.’s Opp., at 8:6 to 9:4.

23

The Defendants also characterize the difficulty of contemporaneous notification as

24“dubious.” 18 Prof. Bernstein has, however, introduced undisputed evidence demonstrating this25

difficulty. See Bernstein Decl. in Support, ¶¶113–118; Bernstein Decl. re Conferences, ¶¶2–8.

26
27
28

17
18

Note that some work is never published. See, e.g., Bernstein Decl. in Support, ¶133.
Defs.’ Opp., at 7:21–23. Evidently the Defendants are alluding to the prudential elements of ripeness, particularly the “hardship to the parties of withholding court consideration.” See Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967).

Plaintiff’s Reply to Defendants’ Opposition7

C 95–00582 MHP

1

ii.

Notification Requirement for Private Email2

Private email is closely analogous to in-person communication at scientific conferences.

3

The main difference is in Prof. Bernstein’s reason for refusing to contemporaneously notify the4government: viz., privacy, rather than practical impossibility. See Pl.’s Motion, at 8:8–20.

5

iii.

Notification Requirement for Web Publications

6

Web publications are another closely analogous situation. The main difference is, again,

7

in Prof. Bernstein’s reason for refusing to notify the government: viz., the cost of determining

8

which of the changes to his web pages would require notification under EAR. 19

9

B.

10

“In the area of freedom of expression, it is well established that one has standing to

11challenge a statute on the ground that it delegates overly broad licensing discretion to an

12administrative office, whether or not his conduct could be proscribed by a properly drawn

13

statute, and whether or not he applied for a license.” Freedman v. Maryland, 380 U.S. 51, 56

14(1965).

The Plaintiff Has Standing to Challenge the Licensing Requirements

15

Throughout this case, the Defendants have failed to understand this basic principle.

16

They have repeatedly mischaracterized Prof. Bernstein’s first Complaint as a challenge to a

17

specific censorship event, rather than a challenge to the power of the censor. 20 It is true

18
19
20
21
22
23
24
25
26
27
28

19

The Defendants misstate the issue when they say that Prof. Bernstein is complaining
about sending “as many as three thousand notices per year.” See Defs.’ Opp., at 8:18
to 9:3. Relatively few documents require notice; the problem is the cost of identifying
those documents. See Pl.’s Motion, at 8:21 to 10:9.
20 See, e.g., Defendants’ Memorandum (1995) (docket no. 17), at(“Plaintiff challenges
these CJ determinations”); Defs.’ Motion, at 3:27 to 4:1 (“Plaintiff’s central  claim
was that these licensing requirements effectively prevented” publication); Id., at 7:18–21(“the central issue was whether [Snuffle]  was subject to export licensing requirements
 . Plaintiff  challenged a decision that it was subject to” regulation). The Defendants
are also continuing to cite cases in which courts refused to engage in due-processreviews of the factual bases for specific export-control designations. See United States
v. Mandel, 914 F.2d 1215 (9th Cir. 1990); United States v. Martinez, 904 F.2d 601(11th Cir. 1990); United States v. Spawr Optical Research, Inc., 864 F.2d 1467 (9thCir. 1988), cert. denied, 493 U.S. 809 (1989); United States v. Helmy, 712 F. Supp.
1423 (E.D. Cal. 1989); United States v. Moller-Butcher, 560 F. Supp. 550 (D. Mass.
1983). This Court has already explained in detail why those cases do not preclude
First Amendment challenges. See Bernstein v. Department of State, 922 F. Supp. 1426,
1431–1432 (N.D. Cal. 1996).

Plaintiff’s Reply to Defendants’ Opposition8

C 95–00582 MHP1that a specific censorship event—in which NSA (through the Department of State) denied

2

Prof. Bernstein’s requests to publish Snuffle—led to Prof. Bernstein’s involvement in this3case, 21 but Prof. Bernstein had standing to sue before he sent his requests to the government.

4i.

Licensing for Answering Questions

5

There is no dispute as to EAR’s licensing requirements for “technical assistance” and6“technology export.” The Defendants simply refer to the irrelevant exceptions discussed above.

7

ii.

Licensing for Postings to Sci.Crypt

815 C.F.R. §740.13(e) does not allow one to “knowingly export or reexport source code,9

corresponding object code or products developed with this source code to Cuba, Iran, Iraq,

10

Libya, North Korea, Sudan or Syria.” 22 Prof. Bernstein plans to post various “EI” programs to11

sci.crypt without applying for a license; this plan violates EAR, even if Prof. Bernstein sends

12

copies of his programs to the government. See Pl.’s Motion, at 11:21 to 12:7.

13

The Defendants observe that—as already pointed out in Prof. Bernstein’s regulatory

14

analysis—various forms of Internet publication do not “establish ‘knowledge’ of a prohibited

15

export.” See 15 C.F.R. §740.13(e)(6); Pl.’s Motion, at 12:3–5; Defs.’ Opp., at 10:17–18. This

16

exception is irrelevant: Prof. Bernstein’s knowledge has already been established by other17

means. See Pl.’s Motion, at 12:1–7; Bernstein Decl. in Support, ¶157.

18

The Defendants have indicated that they are interested only in “direct, knowing” transfers

19

to Cuba, Iran, etc. See Kritzer Decl. (docket no. 192), Attachment 3, at 2. However, the20

Defendants have not explained how to distinguish a “direct, knowing export” from other21“knowing exports,” nor have they made any relevant modifications to EAR.

22

An extreme construction of §740.13(e)(6) would replace “would not establish ‘knowl-

23

edge’ of a prohibited export” with “is exempt from §740.13(e)(4).” This construction would

24

permit Internet publication under §740.13(e) no matter how much the publisher knows about

25

Cuba, Iran, etc. However, the Defendants have said nothing to support this construction.

26

21

27

22

28

See, e.g., Bernstein Decl. in Support, ¶¶88–100; Declaration of Daniel J. Bernstein(1996) (docket no. 63).
15 C.F.R. §740.13(e)(4). This is a limitation on the §740.13(e) exception to licensing;it obviously cannot be construed as a prohibition extending beyond §740.13(e).

Plaintiff’s Reply to Defendants’ Opposition9

C 95–00582 MHP

1

iii.

Licensing for Assembly-Language Programs

2

The Defendants’ continuing censorship activities are aimed primarily at commercial

3

publishers. The Defendants use two tests to identify commercial publications. One of those4

tests is the unavailability of what EAR calls “encryption source code.” See 15 C.F.R. §740.13(e).

5Prof. Bernstein crosses this line when he writes “EI” programs in assembly language.

6

Assembly-language programs are not “compiled,” so they are unequivocally excluded from

7

EAR’s definition of “encryption source code,” and therefore from §740.13(e). See Pl.’s Motion,8

at 10:10 to 11:2; 15 C.F.R. §772.1, definition of “encryption source code”; §740.13(e).

9In his Second Supplemental Complaint, ¶102, Prof. Bernstein specifically averred that

10assembly-language programs are not “compiled.” The Defendants admitted this fact in their

11

Answer. The Defendants now attempt to backpedal: they claim that §740.13(e) actually applies

12

to assembly-language programs, and that they never said anything different to Prof. Bernstein.

13

See Defs.’ Opp., at 10:6–11; Second Kritzer Decl., ¶10.

14

Whether or not this claim is procedurally proper, it lacks credibility. Construing

15§740.13(e) to permit assembly language would, for all practical purposes, eliminate EAR’s

16line between “encryption source code” and “encryption object code.” This change would be

17welcomed by Prof. Bernstein—and by commercial publishers—but it is not consistent with the

18

Defendants’ stated encryption policy.

19

iv.

Licensing for Scientific Journals on the Internet

20

As noted above, the Defendants use two tests to identify commercial publications

21

subject to licensing. The second test is price. EAR draws a line at the cost of “reproduction and22

distribution,” so books, journals, and other items published by publishing houses are excluded

23

from EAR’s definition of “published.” See Pl.’s Motion, at 12:8 to 13:12. 23
The Defendants now claim that EAR actually allows the other costs of publishing:

24
25
26
27

23

The Defendants may argue that publications for private profit are not protected by theFirst Amendment. “We cannot agree. That books, newspapers, and magazines are
published and sold for profit does not prevent them from being a form of expression
whose liberty is safeguarded by the First Amendment.” Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495, 501 (1952).

28
Plaintiff’s Reply to Defendants’ Opposition10

C 95–00582 MHP

1specifically, author compensation, acquisition costs, editorial costs, illustration costs, design

2

costs, typesetting costs, promotion costs, and profit. See Defs.’ Opp., at 11:20, 11:27.

3

This claim has no support in EAR. The section cited by the Defendants—as already4

pointed out in Prof. Bernstein’s regulatory analysis—specifically forbids charging for develop-

5ment, design, and acquisition. See 15 C.F.R. §734, Supplement 1, Question G(2).

6The Defendants then argue the opposite side, claiming that a price “30 times” the7

reproduction and distribution cost is “clearly beyond any conceivable cost of publishing.” See

8

Defs.’ Opp., at 12:2–3 (emphasis in original); 15 C.F.R. §734, Supplement 1, Question A(5).

9This claim flies in the face of the undisputed facts. See Declaration of Timothy O’Reilly, ¶810(ratios of approximately 4, 9, and 100 for three books published by a publishing house).

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

C.

The Notification Requirements Cannot Be Severed from the Licensing
Requirements

The above discussion conceptually separates EAR’s notification requirements from
EAR’s licensing requirements. However, these requirements are not separate in the text of
EAR; they are structured as exceptions to the same general prohibitions.
For example, EAR prohibits “export” to most destinations of “software” listed in 5D002.
There are exceptions for exporters who have obtained licenses and, under some circumstances,for exporters who have provided notifications. See 15 C.F.R. §736.2(b)(1); §740.13(e).
Prof. Bernstein plans to violate this prohibition, as explained above. Therefore, he has
standing to challenge the prohibition. Activities that conceptually require notification are, forpurposes of this analysis, identical to activities that conceptually require licensing.
Note that, even if the Court limits the grounds for its decision that Prof. Bernstein has
standing to challenge 5D002 and 5E002, it does not have to make an analogous limitationin its First Amendment analysis. The Court can reach facial challenges (for example, prior
restraint), considering various First Amendment rights of third parties, without asking whether
Prof. Bernstein has those rights. See generally Secretary of State of Md. v. Joseph H. Munson
Co., 467 U.S. 947, 954–959 (1984) (discussing jus tertii and overbreadth; facial challenges areallowed to “prevent the statute from chilling the First Amendment rights of other parties”).

Plaintiff’s Reply to Defendants’ Opposition11

C 95–00582 MHP

1V.

EAR IS CONTENT-BASED2

A.

The Distinction Between Communication and Use

3

Publishing instructions is not the same as following instructions. Much of the confusion

4in the Defendants’ briefs arises from their omission of the verb. See, e.g., Defs.’ Motion, at

5

19:3–13; Defs.’ Opp., at 13:11–12, 16:21–24.

6

Consider, as a hypothetical example, a book that explains how to use a microwave oven.

7

The book says, in part, “Press button B; then press button 2; then press button 5; then press

8

Start.” A cook follows these instructions: he presses B, 2, 5, Start.

9

Following the instructions is not speech; but writing and publishing the instructions

10

is speech. The First Amendment poses no obstacle to a government regulation of pressing

11

buttons on microwave ovens; but a government regulation of telling people to press buttons on

12

microwave ovens would be content-based and therefore subject to strict scrutiny. Asking “Is a13button sequence fully protected speech?” would needlessly confuse the publication of a button

14

sequence with the use of a button sequence.

15

A closer inspection reveals that, when the cook presses buttons, he is actually talking

16

to a small computer inside his microwave oven. He is passing instructions (“B, 2, 5, Start”)

17

from the book author to the computer. But this technological detail has no relevance to the18First Amendment analysis. The author’s disclosure of information to the cook is fully protected19speech; the cook’s disclosure of information to his oven is a red herring.

20

The government could argue, exactly as it is arguing in this case, that “instructions to

21

a computer” are not protected by the First Amendment. It is true that giving instructions to a22

computer inside a microwave oven is not protected by the First Amendment. But publishing23

the same instructions, or disclosing the instructions to another person, is fully protected.

24Consider, as another example mentioned by the Defendants, primitive computers that25

are “programmed” by “manually re-wiring their circuitry.” See Defendants’ Opposition (1997)26(docket no. 132), at 4:17–18. A government regulation of re-wiring a machine would not trigger

27

any First Amendment scrutiny; a government regulation of telling someone how to re-wire a

28

machine would be subject to strict scrutiny.
Plaintiff’s Reply to Defendants’ Opposition12

C 95–00582 MHP

1

B.

2

There is, of course, a connection between communicating information and using that3

information: for example, between publishing instructions and following those instructions. As

4stated in American Booksellers Assn., Inc. v. Hudnut, 771 F.2d 323, 333 (7th Cir. 1985), aff’d5mem., 475 U.S. 1001, reh’g denied, 475 U.S. 1132 (1986):

6

Much speech is dangerous. Chemists whose work might help someone
build a bomb, political theorists whose papers might start political movements that lead to riots, speakers whose ideas attract violent protesters,
all these and more leave loss in their wake.

7
8
9
10
11

Some established categories of content are so dangerous, or otherwise undesirable, that they
can be regulated; these regulations survive First Amendment strict scrutiny. 24 A large part ofFirst Amendment case law is devoted to analyzing the exact boundaries of these categories. 25
The Defendants repeatedly point to the connection between communication and use—

12
13
14
15
16

specifically, the utility of the Internet-security instructions at issue in this case—and leap to theconclusion that EAR is content-neutral. This argument is fundamentally flawed. Yes, there isa connection between content and its use; the courts evaluate this connection by applying strict
scrutiny, not by skipping it.
C.

17

20
21

purpose; otherwise, it is content-based. Pl.’s Motion, at 14:2–28. This two-part test is perhaps
most clearly stated in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642–646 (1994),
24

22
25

23
24
25
26
27
28

The Test for Content-Neutrality

A regulation is content-neutral if it is facially content-neutral and has a content-neutral

18
19

The Connection Between Communication and Use

See generally Pl.’s Motion, at 17:7–21 (discussing structure of First Amendment strict
scrutiny); Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S.
105, 124 (1991) (Kennedy, J., concurring) (same).
See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (libel); Brandenburg v.
Ohio, 395 U.S. 444 (1969) (advocacy of violence); Cohen v. California, 403 U.S. 15(1971) (offensive words); Herceg v. Hustler Magazine, Inc., 814 F.2d 1017 (5th Cir.
1987), cert. denied, 485 U.S. 959 (1988) (instructions for dangerous activity); Hustler
Magazine, Inc. v. Falwell, 486 U.S. 46 (1988) (infliction of emotional distress); UnitedStates v. Mendelsohn, 896 F.2d 1183 (9th Cir. 1990) (instructions for criminal activity);
Rice v. Paladin Enters., Inc., 128 F.3d 233 (4th Cir. 1997), cert. denied, 118 S. Ct. 1515
(1998) (same); Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 2002 U.S. LEXIS
2789 (2002) (pornography). Note that the instructions in Mendelsohn were actually
software; however, this fact did not change the First Amendment analysis.

Plaintiff’s Reply to Defendants’ Opposition13

C 95–00582 MHP1but the idea can be traced back to Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972):

2[A]bove all else, the First Amendment means that government has no
power to restrict expression because of its message, its ideas, its subject
matter, or its content.  Selective exclusions from a public forum may
not be based on content alone, and may not be justified by reference tocontent alone.

3
4
5

Mosley, 408 U.S. at 95–96 (emphasis added).

6
7
8
9
10

As a hypothetical example, a statute outlawing “hard-to-understand books” would be
facially content-based, and therefore content-based, even if the government has a legitimate
goal of saving time for its citizens. The Defendants’ suggested tests for content-neutrality
would produce the opposite conclusion. 26
VI.

11
12
13

“Cryptographic function,” “encryption function,” and several other phrases in EAR
are unconstitutionally vague. See Pl.’s Motion, at 21:28 to 22:12; see generally Bernstein v.
Department of State, 945 F. Supp. 1279, 1292–93 (N.D. Cal. 1996) (analyzing ITAR vagueness).

14
15

The Defendants respond that encryption means turning a message into gibberish so thatit cannot be read by anyone except the intended recipient. See Defs.’ Motion, at 25:8–17.

16
17
18
19

Prof. Bernstein agrees that the concept of encrypted messages is clear. The concept ofencryption functions is nevertheless vague. Prof. Bernstein asked, for example, whether pseudorandom number generators are “encryption functions,” and whether they are “cryptographic
functions”; 27 the answers to these questions are notably absent from Defs.’ Opp.

20
21

The main difficulty is that one function can have many different applications. Does
26

22
23
24
25
26
27
28

EAR IS UNCONSTITUTIONALLY VAGUE

27

See, e.g., Defs.’ Opp., at 17:1–2 (asserting content-neutrality whenever regulators do notintend to suppress “specific substantive ideas”); cf. Simon & Schuster, Inc. v. Membersof N. Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991) (rejecting that test); Hurleyv. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569(1995) (commenting that the “Jabberwocky verse of Lewis Carroll” is “unquestionably
shielded” even though it does not convey a “particularized message”).
Pl.’s Motion, at 22:9–12; see generally Bernstein Decl. in Support, ¶¶83–85 (discussing
pseudorandom number generators). The Defendants assert that they need “as much understanding as possible of encryption products that may be used by foreign adversaries,”
Giles Decl. (docket no. 191), ¶16; if this is true, then they should be demanding to see all
pseudorandom number generators, including those designed solely for “authentication.”
See Bernstein Decl. in Support, ¶84; Bernstein Decl. re Cryptography, ¶¶22–23.

Plaintiff’s Reply to Defendants’ Opposition14

C 95–00582 MHP1“encryption function” include all functions that have a substantial number of encryption applica-

2

tions, or merely functions that do not have a substantial number of non-encryption applications?

3

Does the answer depend on the publisher’s intent? EAR says nothing to clarify these issues.

4

The Defendants state that it “should be obvious, even to a layperson, that software which

5functions solely to protect PIN numbers or passwords, in order to prevent tampering with a6transaction, is different from software that functions to scramble plaintext.” Defs.’ Opp., at7

9:25–28. What is not obvious is the status of components (in programmer jargon, “libraries”)

8shared between those two programs. 28 Does a pseudorandom number generator used by

9both programs, and responsible for the cryptographic strength of both programs, constitute an

10“encryption function”? What about a “cryptographic function”?

11

VII.

EAR IS AN UNCONSTITUTIONAL SEARCH AND SEIZURE

12The Defendants claim that government-compelled disclosures of private information13

are neither a “search” nor a “seizure” under the Fourth Amendment. See Defs.’ Motion, at

14

25:27; Defs.’ Opp., at 20:8–9. That claim is erroneous. See Pl.’s Motion, at 25:1–5.

15

CONCLUSION16

For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff’s Second Supple-

17

mental Complaint should be denied; Defendants’ Motion for Summary Judgment should be

18

denied; and Plaintiff’s Motion for Summary Judgment should be granted.

19
20

Respectfully submitted,

21
22
DANIEL J. BERNSTEIN
23
24
25
26
27

28

Consider, as an analogy, a hypothetical law prohibiting disclosure of “seven-layercake instructions.” Does this law prohibit publication of a recipe for chocolate frosting?
Chocolate frosting is a vital component of a seven-layer cake; but chocolate frosting also
has many other applications. What about general instructions for handling chocolatecovered cakes without making a mess? What about a seven-layer-cake ingredient list
without the baking instructions? “Seven-layer cake” may be clear, but “seven-layer-cakeinstructions” is not.

28
Plaintiff’s Reply to Defendants’ Opposition15

C 95–00582 MHP