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EFFector - Volume 8, Issue 5 - State Dept. Responds to Bernstein/EFF Crypto Export Suit


EFFector - Volume 8, Issue 5 - State Dept. Responds to Bernstein/EFF Crypto Export Suit

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EFFector Online Volume 08 No. 05       May 11, 1995
A Publication of the Electronic Frontier Foundation        ISSN 1062-9424

In This Issue:
State Dept. Responds to Bernstein/EFF Crypto Export Suit
Karn to Sue State Dept. Over ITAR First Amendment Violations
New Features at EFFweb - Govt. Server Index, Forsale/Wanted
Calendar of Events
Quote of the Week
What YOU Can Do

* See or, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *


Subject: State Dept. Responds to Bernstein/EFF Crypto Export Suit

On May 1, 1995, the government filed its answer to the Plaintiff's
complaint in Bernstein v. State Dept.  That case, filed on March 23 
by Dan Bernstein and sponsored by EFF, challenges the government's 
classification of encryption as a munition and controlling export of 
cryptographic items as being an unconstitutional prior restraint on 
speech.  The only surprise regarding the government's response is that 
DoS didn't attempt to delay filing.  The answer alleges that the court 
has no jurisdiction to hear issues of national security, that individual 
defendants should be dismissed since they were acting within the scope of 
their authority, and that we failed to exhaust all administrative remedies.  

The government agencies also "have been unable to locate a copy of the
September 22, 1993, letter [from Bernstein]...or confirm that an appeal was 
submitted...." Since Bernstein is claiming that their failure to respond 
to that appeal is evidence of the uselessness of the administrative 
appellate process, they're probably frantically searching for that 
important document as you read this.  

The State Dept. answer (and other case documents) are on our site at:, 1/EFF/Privacy/ITAR_export/Bernstein_case, /pub/Privacy/ITAR_export/Bernstein_case/

Warning, of sorts: The State Dept.'s answer is a document of very 
thick legalese (even the attorneys working on Bernstein's behalf 
consider it extremely dull.)


Subject: Karn to Sue State Dept. Over ITAR First Amendment Violations

Below is a letter from Phil Karn's attorneys to the Department of State
warning that Karn will file suit against State if it does not favorably 
and immediately respond in his pending appeal.

Karn, since 1993, has been attempting to seek export approval of a 
diskette of cryptographic sourcecode created as a supplement to Bruce 
Schneier's _Applied_Cryptography_ book.  Though the book is exportable, 
and the diskette contains nothing but an exact duplication of code 
already in the book,  Karn's Commodity Jurisdiction Request has been 
repeatedly denied.  The Administration maintains, unbelievably, that 
the source  code is somehow *not* the same, but that its translation to 
"machine-readable format" somehow imbues it with "value-added" qualities,
as if by magic.  [One surmises State may not have heard of scanners and
manual typing, which render any text "machine-readable."]

More documents from the Karn case can be found at: 1/EFF/Privacy/ITAR_export/Karn_Schneier_export_case, /pub/Privacy/ITAR_export/Karn_Schneier_export_case/


                                April 28, 1995

Mr. Thomas E. McNamara
Assistant Secretary
Bureau of Political-Military Affairs
Room 7325A
Department of State
Washington, DC  20520

Dear Mr. McNamara:

On December 5, 1994, we wrote on behalf of our client, Mr. Philip
R. Karn, Jr. of San Diego, California, to appeal the adverse
determination by Deputy Assistant Secretary Martha C. Harris with
regard to Mr. Karn's appeal of an determination by the State
Department's Office of Defense Trade Controls ("ODTC") in CJ case
081-94.  On February 28, 1995, we met with you and representatives of
the Department of Justice and the National Security Agency, to provide
additional information and explain our position.  We have not heard
anything more about this appeal since that meeting.

All relevant facts are known to the Department and to the interested
agencies.  While all of us recognize the importance of the issues
raised in this case, the issues are neither complex nor analytically
difficult.  As you know, it has appeared to us and to other observers
that the licensing delays that Mr. Karn and others who seek licenses
relating to cryptographic materials have experienced fit a pattern of
procrastination by federal agencies which appears to be based on the
publicly stated policy of the National Security Agency to attempt to
deter the further spread of strong cryptography as much as they can,
notwithstanding the fact that the technology at stake is already
widely available, as documented in our appeal.  In short, it continues
to appear that NSA is using the tactics of delay and
decision-avoidance in an effort to continue to chill the First
Amendment activities of Mr. Karn and others interested in

Mr. Karn has patiently attempted to comply with established procedures
throughout this matter.  His initial request for a Commodity
Jurisdiction determination was filed on March 9, 1994, and was denied
by ODTC on May 12, 1994.  That adverse decision was appealed to
Dr. Harris on June 7, 1994.  Dr. Harris affirmed the adverse decision
on October 7, 1994.  The issues involved had been pending before your
department since Mr. Karn filed his 1993 request for a commodity
jurisdiction determination on the book, Applied Cryptography.  In
short, the Executive Branch has had the issue in this case before it
for over a year.  We have repeatedly been assured that the matter is
receiving "high-level attention" and has generated significant
inter-agency discussion.

The continued delay in rendering a decision in this matter is
inexplicable except on the assumption that the Executive Branch
intends, by its inaction, to chill the activities of Mr. Karn and
others.  As you know from our earlier submission, the chilling effects
of this system of prior restraints lies at the heart of the
constitutional difficulties of the ITAR regime that have been
previously identified by the Department of Justice.

Please be advised that while we would prefer to obtain a decision on
our appeal from your office, we will not continue to wait for an event
that apparently will not occur.  Mr. Karn has requested that we seek
judicial review of this matter not later than June 15, 1995, whether
or not your decision has been issued.  We will take such action,
unless, of course, you render a favorable decision before that time.


                                        Kenneth C. Bass, III
                                        Thomas J. Cooper

cc:   Phil Karn

[end of letter]


Subject: New Features at EFFweb - Govt. Server Index, Forsale/Wanted

EFF's World Wide Web server at has been upgraded with
several recent features:

 * The EFF Government Server Index at
   provides links to hundreds of governmental and government-related
   servers around the world from state and local information, through
   US and non-US federal servers, to UN and other multinational governmental
   bodies' online offerings.  Probably the most comprehensive index of its
   kind, the list is a volunteer effort, and updated frequently.
   EFF would like to thank Fred Bourgeois for his tireless efforts in 
   maintaining this list.

 * The For-sale/Wanted Page at
   EFF has some equipment to sell, and is also seeking particular
   hardware and software.  If interested in helping us unload some of
   this material, or if you or your company would like to donate or provide 
   non-profit discounts on some equipment, many thanks! Donors will be listed
   on the page if they wish - good advertising!

 * New Online Activism & Government Index at
   A sneak preview of the shape of things to come at EFFweb.  A complete
   HTML index of the unique EFF Activism and Government FTP archive has
   been completed, with links to on-site and off-site relevant resources.
   Eventually our entire FTP/Gopher/WWW archive will be structured in this
   manner.  State one of the effort is already complete: most of our hundreds
   of directories now have text 00-INDEX file indexes.  The next stages are 
   beginning  soon (full descriptions of all files, and finally HTMLizing 
   of all indexes for WWW browsing.)  Many other directories also already
   have HTML partial indexes, and all of the HTML directory indexes can
   be found quickly from our site-wide Topical Index list at in alphabetical order.

 * Simpler Archive Structure
   The FTP and WWW archives have been restructured to make finding the
   important files you need easier.  All directories formerly located under
   /pub/EFF/Policy/ (a.k.a. /pub/EFF/Issues/) have been moved to /pub/ (for
   example: is now; and, /pub/EFF/Issues/Legal/
   is now, /pub/Legal/).  This will make it easier to browse
   our site without missing our most important archives, and also gives
   you shorter, easier paths and URLs.  Note for those browsing from our
   Welcome Page at - pick "EFF Document & File Archives",
   then "EFF WWW-Enhance FTP Archive" to get to the
   roundabout way.)  Links to the old directory locations are still valid,
   and will remain valid for several months.


Subject: Calendar of Events

This schedule lists EFF events, and those we feel might be of interest to
our members.  EFF events (those sponsored by us or featuring an EFF speaker)
are marked with a "*" instead of a "-" after the date.  Simlarly, government
events, such as deadlines for comments on reports or testimony submission, are
marked with "!" in place of the "-" after the date.

If you know of an event of some sort that should be listed here, please
send info about it to Stanton McCandlish (

The latest full version of this calendar, which includes material for
later in the year as well as the next couple of months, is available from:

ftp:, /pub/EFF/calendar.eff
gopher:, 1/EFF, calendar.eff

Updated: May 11, 1995


May  14-
     17 - Interactive95; Anaheim, Calif. "The leading forum for developers
          and users of multimedia learning technology".
          Contact: 1-800-348-7246 (voice, US-only), +1 617 393 3344 (voice,

May  16 * Networking the World Conf.; Virginia Commonwealth U., Richmond, VA.
          Legal issues panel includes Shari Steele (EFF)

May  17-
     20 - National Public Telecomputing Network 1995 Conf. (Free-Net '95);
          Computing Commons Bldg., ASU, Tempe, Arizona.
          Includes a session entitled "Laws and Liabilities of Electronic 

May  22-
     24 - ErgoCon '95 - Silicon Valley Ergonomics Conference & Exposition;
          San Jose, Calif.
          Contact: Abbas Moallem, +1 408 9244132 (voice), +1 408 924 4153 (fax)

May  26-
     28 - Virtual Futures 1995; U. of Warwick, Coventry, UK.  VF'95 "is an 
          interdisciplinary event that examines the role of cybernetic 
          and specifically dissipative or non-linear models in the arts,  
          sciences, and philosophy. The conference explores the relationship
          between postmodern philosophy and chaos theory, with topics 
          ranging from: information  technology, hypertext and
          multimedia applications...[to] neural nets, and nanotechnology."
          Speakers include: Kathy Acker, Hakim Bey, Richard Kadrey, Manuel
          DeLanda, Alan Sondheim and many more.  Deadline for proposals:
          Mar. 1 '95.
          Contact: +44 0203 523523 x2582 (voice), +44 0203 523019 (fax)

May  31 - Deadline for paper submissions, 11th Ann. Computer Security 
          Applications Conference (see Dec. 11, below).

June 4-
     6  - Cyber.Xpo.95; Sahara Hotel, Las Vegas, Nevada; sponsored by 
          _Sysop_News_. Seminar sessions & tradeshow.
          Contact: +1 614 452 4541 (voice)

June 5-
     6  ! 5th Annual "U.S. Copyright Office Speaks" Seminar (West Coast);
          the Beverly Hilton, Los Angeles, Calif.  Topics include: inside 
          look at New Register's agenda, analysis of NII legislation, 
          ACCORD update, & international developments. (See May 1-2 for 
          East Coast event.)
          Contact: +1 201 894 8260 (voice)

June 7-
     9  - Third International Conference on Artificial Intelligence
          Applications on Wall Street; Pace University, New York City, NY.
          Contact: +1 914 763 8820 (voice), +1 914 763 9324 (fax)

June 8-
     10 - Exploring the VideoClass Alternative; Raleigh, N. Carolina.

June 11-
     14 - Society & the Future of Computing (SFC'95); Tamarron Lodge, 
          Durango, Colorado.  Sponsored by the Assoc. for Computing 
          Machinery, LANL, U. of Md., IEEE. Speakers will include Phil Agre 
          (UCSD), Leslie Sandberg (Institute for Telemedicine), Wm. 
          Halverson (PacBell), Don Norman (Apple), Linda Garcia 
          (Congressional Office of Technology Assessment), John 
          Cherniavsky (Natl. Science Found.) and several others.

June 13-
     15 - IDT 95 - 12th Congress on Information Markets and Industries;
          Paris, France.  Organized by ADBS (a society of information
          professionals), ANRT (National Association of Technological
          Research), and GFII (French association of information industries).
          Contact: +33 1 43 72 25 25 (voice), +33 1 43 72 30 41 (fax)

June 17-
     19 - NECC'95: Emerging Technologies and Lifelong Learning: 16th Annual
          National Educational Computing Conf., sponsored by International
          Society for Technology in Education; Baltimore, Maryland.
          VP Gore and Sec'y. of Labor Robert Reich invited as keynote
          speakers. Other speakers include: John Phillipo (CELT), Frank
          Knott (MGITB)
          Contact: +1 503 346 2834 (voice), +1 503 346 5890 (fax)

June 18-
     21 - ED-MEDIA'95; Graz, Austria. A world conference on educational
          multimedia and hypermedia. Sponsor: The Association for the
          Advancement of Computing. 
          Contact: +1 804 973 3987 (voice)

June 24-
     28 - Workshop on Ethical & Professional Issues in Computing; 
          Rensselaer Polytechnic Inst., Troy, NY. Deadline for submissions:
          Apr. 15.
          Contact: +1 518 276 8503 (voice), +1 518 276 2659 (fax)

June 27-
     29 - Women in Technology Conference: Channels for Change; Santa Clara 
          Conv. Ctr., Santa Clara, Calif.  Speakers include: Gloria Steinem.
          Sponsored by Int'l. Network of Women in Technology (WITI).
          Contact: +1 818 990 1987 (voice), +1 818 906 3299 (fax)

June 28-
     30 - INET '95 Internet Society 5th Ann. International Networking
          Conf.; Honolulu, Hawaii.  Sponsored by Internet Society (ISoc).
          See Jan. 13 for proposal deadline
          Contact: +1 703 648 9888 (voice)
          FTP:, /isoc/inet95/
          Gopher:, 1/isoc/inet95 


Subject: Quote of the Week

"I think there are certainly going to be lots of debates about the
Internet.  My hunch is that the First Amendment rights are going to
prevail, and that in fact this is an astonishingly free country and pretty
much intends to remain that way, and the Internet will just be one more
expression of our freedom... I think [with encryption] you have a
different set of questions.  I think clearly no American wants terrorists
to be able to have a level of secrecy which enables them to organize ways
of killing people, on the other hand people do want the right to
confidentiality.  I think that is a very...that is going to take some
time to explore."

  - Speaker of the US House of Representatives Newt Gingrich in response
    to questions about free speech and crypto by Jeff Ubois at the opening
    ceremony for the Smithsonian institution WWW site, May 1995.

Disagree with Newt?  Think encryption is the 'same question' - a matter of
privacy and free speech?  Join EFF!


Subject: What YOU Can Do

* ITAR Export Restrictions on Encryption

The U.S. International Traffic in Arms Regulations classify encryption
algorithms and products as "munitions" (weapons of war), and the State 
Department and NSA thereby restrict distribution of encryption technology -
technology vital to the networking security and your personal privacy.
Companies making encryption products are forced to produce good versions 
for domestic use and crippled versions for export.  Or, more likely, to 
simply produce a crippled version, since maintaining two versions is 
often prohibitively expensive.  The ITAR export controls are the primary 
ace in the hole the Administration is using to push key "escrow" schemes 
such as Clipper.  Help EFF defeat the unconstitutional ITAR crypto export 
restrictions but supporting the EFF Cyberspace Legal Defense Fund, the 
fund fuelling the Bernstein v. Dept. of State case.
For more information, see:, 1/Alerts, cyberlegal_fund_eff.announce, /pub/Alerts/cyberlegal_fund_eff.announce

* The Exon Bill (Communications Decency Act)

The Communications Decency Act poses serious threats to freedom of
expression online, and to the livelihoods of system operators.  The
legislation also undermines several crucial privacy protections.

Business/industry persons concerned should alert their corporate govt.
affairs office and/or legal counsel.  Everyone should write to their own
Senators and ask them to oppose this bill.  Explain, quickly and
clearly, why this bill is dangerous, and urge efforts to stop this
legislation or remove it from the larger bill it is a part of.

S.652, the Senate telecom deregulation bill, now contains Sen. Exon's
"Communications Decency Act" (formerly S.314.)  The House version, even
more dangerous to system operators, is H.R.1004.

For more information on what you can do to help stop this dangerous
legislation, see:, /pub/Alerts/s314_hr1004_s652.alert, 1/Alerts, s314_hr1004_s652.alert

If you do not have full internet access, send a request for this action
alert to

* Find Out Who Your Congresspersons Are

Writing letters to, faxing, and phoning your representatives in Congress
is one very important strategy of activism, and an essential way of
making sure YOUR voice is heard on vital issues.

EFF has lists of the Senate and House with contact information, as well
as lists of Congressional committees. These lists are available at:, /pub/Activism/Congress_cmtes/, 1/EFF/Issues/Activism/Congress_cmtes

The full Senate and House lists are senate.list and hr.list, respectively.
Those not in the U.S. should seek out similar information about their
own legislative bodies.  EFF will be happy to archive any such
information provided.

* Join EFF!

You *know* privacy, freedom of speech and ability to make your voice heard
in government are important. You have probably participated in our online
campaigns and forums.  Have you become a member of EFF yet?  The best way to
protect your online rights is to be fully informed and to make your
opinions heard.  EFF members are informed and are making a difference.  Join
EFF today!

For EFF membership info, send queries to, or send any
message to for basic EFF info, and a membership form.



EFFector Online is published by:

The Electronic Frontier Foundation
1667 K St. NW, Suite 801
Washington DC 20006-1605 USA
+1 202 861 7700 (voice)
+1 202 861 1258 (fax)
+1 202 861 1223 (BBS - 16.8k ZyXEL)
+1 202 861 1224 (BBS - 14.4k V.32bis)
Membership & donations:
Legal services:
Hardcopy publications:
General EFF, legal, policy or online resources queries:

Stanton McCandlish, Online Services Mgr./Activist/Archivist (

This newsletter printed on 100% recycled electrons.

Reproduction of this publication in electronic media is encouraged.  Signed
articles do not necessarily represent the views of EFF.  To reproduce
signed articles individually, please contact the authors for their express
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To subscribe to EFFector via email, send message body of "subscribe
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Back issues are available at:, /pub/EFF/Newsletters/EFFector/, 1/EFF/Newsletters/EFFector

To get the latest issue, send any message to (or, and it will be mailed to you automagically.  You can also get
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End of EFFector Online v08 #05 Digest


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