Professional Corporation 
177 Bovet Road, Sixth Floor 
San Mateo, CA 94402
Tel: (415) 341-2585
Fax: (415) 341-1395

LEE TIEN, ESQ.; SBN 148216
1452 Curtis Street
Berkeley, CA 94702
Tel: (510) 525-0817

Attorneys for Plaintiff
Daniel J. Bernstein

Assistant Attorney General
United States Attorney
Assistant United States Attorney 
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7198
Department of Justice
Civil Division, Room 1084
901 E Street, N.W.
Washington, DC 20530
Telephone: (202) 514-4782

Attorneys For Defendants 
United States Department of State, et al.


				) C 95-0582 MHP
	Plaintiff,		) 
	v.			) 
STATE et al.,			) 
	Defendants. 		) Date: September 20, 1996
				) Time: 12:00 p.m. 
				) Judge: Hon. Marilyn Hall Patel

Pursuant to the direction of the Court, the parties hereby submit the
following Joint Statement Of Undisputed Facts in conjunction with
Plaintiff's motion for summary adjudication and partial summary
judgment, and Defendants' motion for summary judgment. This joint
statement contains solely facts which are undisputed for purposes of
the pending motions only.  The parties reserve the right to argue
whether certain facts are material to the legal issues before the
Court. The Court is also referred to the parties' respective pleadings,
declarations or affidavits, citations to authority, and other evidence
that the parties have submitted for the record.


I. Relevant Terminology

* 'Encryption' is the process by which the original, "human-readable"
text of a message or document (also known as "plaintext") is
transformed into a text that the sender and recipient intend not to be
understandable by third parties (known as "ciphertext").

* 'Decryption' is the reverse process of transforming the ciphertext
message or document into the original plaintext.

* "Cryptography" is the science of encryption and decryption. In
general, cryptography is used to prevent the unauthorized interception,
viewing, reading, tampering, and forging of messages. Most modern
cryptography uses a 'key' -- specific information (analogous to a
password) that is necessary to decrypt ciphertext. Whether an encrypted
message is actually "secure" depends on, inter alia, the
relative "strength" of the encryption as well as the security of the

* Cryptanalysis' refers to the science and activity of "breaking" a
ciphertext message without the key (i.e. determining the content
of encrypted communications). Cryptanalysis can also refer to the
technique of testing whether the encryption is effective.

* Information sent via computer is, in the absence of cryptography,
unsecure in transmission and may be viewed by those other than the
intended recipient. With cryptographic software, messages or text can
be secured with the intention that whatever is sent is inaccessible to
anyone except the intended recipient (who possesses the key).

* A cryptographic "algorithm" is a set of instructions, usually made up
of mathematical functions or equations, that can be applied to encrypt
plaintext into ciphertext. Cryptographic algorithms, like other
algorithms, can be implemented on a computer through the use of
computer programming language and, in that form, are computer programs
or software.  Cryptographic "source code" is a computer program written
in a computer language such as the "C" language that can be used to
encrypt and decrypt information.

* A person can encrypt a message or document on a computer by
converting the cryptographic source code into "object code" using
another computer program called a "compiler." Object code may be
conveniently thought of as a series of "ones" and "zeros" that may be
directly executed by a computer. Compiling software performs the
compiling function and is commonly available at retail computer
outlets. With such software loaded, source code can be compiled into
object code with a press of a button on a computer.

* Cryptographic source code -- cryptographic algorithms in a computer
programming language such as "C" -- can be read and evaluated by
computer scientists, mathematicians, programmers and others who possess
the training or ability to understand such code.

* Articles and papers containing and discussing cryptographic
algorithms, source code, and theories have been published in scientific
journals for many years for peer review and evaluation.

II.  Plaintiff's CJ Requests

* Plaintiff developed an algorithm called "Snuffle" for encrypting and
decrypting communications. He wrote a description of the Snuffle
algorithm (set forth at DJBCJF-2), Tab D1 to the Complaint. Plaintiff
also developed Snuffle 5.0, which includes Snuffle.c and Unsnuffle.c
(DJBCJF-3 and 4)(referred to hereafter as "Snuffle 5.0).

* Snuffle 5.0 software is cryptographic source code written in the "C"
computer language. If combined with a hash function, compiled and run
on a computer, Snuffle 5.0 can direct the computer to transform
information into ciphertext and back into plaintext again, including by
encrypting interactive text exchange between two people who have
exchanged keys.

* Plaintiff seeks, inter alia, to post Snuffle 5.0, his
description of Snuffle (set forth at DJBCJF-2) and instructions on how
a person may program and use a computer to encrypt using Snuffle
(DJBCJF-5 and 6) on an Internet newsgroup called sci.crypt. Defendants'
position regarding these items is set forth at Tabs 21 and 24 of the
Lowell Declaration.

* DJBCJF-2 through 6 were developed without government funds and are
not classified.

* The Internet is an international telecommunications computer network
through which computer users are able to distribute and access
information, including academic and scientific information. See
also ACLU v. Reno, 929 F.Supp. 824, 831-834, 836 (E.D. Pa.,
1996) (Preliminary Injunction Findings of Fact paras. 1, 3-5, 13,
25, 33-35). Computer software can also be distributed electronically
over the Internet.  One common method of distribution through the
Internet are online newsgroups like sci.crypt. See ACLU, 929 F.Supp. at
834 (paras. 25-26).

* Plaintiff submitted a letter dated June 30, 1992, to the State
Department. Bernstein Decl. Exhibit A; Lowell Dec. Tab 3.

* By letter dated August 21, 1992, the State Department responded.
Bernstein Decl. Exhibit B; Lowell Decl. Tab 4.

* Plaintiff submitted another letter to the State Department dated
March 19, 1993. Bernstein Decl. Exhibit C; Lowell Decl. Tab 5.

* On or about March 26, 1993, Plaintiff contacted Charles Ray by
telephone. Bernstein Decl. Exhibit D.

* Plaintiff submitted a letter to the State Department dated April 2,
1993. Bernstein Decl. Exhibit E, Lowell Decl. Tab 6.

* By letters dated May 25, 1993 and May 27, 1993, the State Department
responded to Plaintiff. Lowell Decl. Tabs 9 and 10.

* Plaintiff submitted a letter to the State Department dated June 30,
1993. Lowell Decl. Tab 12.

* On or about July 7, 1993, the State Department responded to
Plaintiff's letter dated June 30, 1993. Bernstein Decl. Exhibit F;
Lowell Decl. Tab 13.

* Plaintiff submitted five letters to the State Department dated July
15, 1993. Bernstein Decl. Exhibit G; Lowell Decl, Tab 16.

* By letter dated July 19, 1993, the State Department responded to a
telephone request by Plaintiff. Lowell Decl. Tab 15.

* The State Department sent a letter to Plaintiff dated July 26, 1993,
concerning his five letters of July 15, 1993. Lowell Decl. Tab 17.

* Plaintiff submitted a letter to the State Department dated September
20, 1993. Lowell Decl. Tab 14.

* By letter dated October 5, 1993, Defendants responded to Plaintiff's
letters of July 15, 1993. Bernstein Decl. Exhibit I; Lowell Decl. Tab

* Exhibit C to the Complaint (and Exhibit J to Bernstein Decl.) is a
letter dated September 22, 1993, from Plaintiff addressed to Ambassador
Michael Newlin, then-Acting Deputy Assistant Secretary in the Bureau of
Political-Military Affairs, appealing the State Department's first
commodity jurisdiction determination (CJ-191-92). The State Department
has not located any record of this appeal having been received.

* Plaintiff did not appeal the State Department's determination
contained in its letter to him of October 5, 1993.

* On June 29, 1995, the State Department sent a letter to Plaintiff
concerning its prior determinations. Bernstein Decl. Exhibit K; Lowell
Decl. Tab 24.

* By letters dated May 3, 1996 and July 3, 1996, Plaintiff, through
counsel, again inquired concerning the State Department's letter of
June 29, 1995, and concerning Plaintiff's plans to teach an upcoming
undergraduate-level course on cryptography in January, 1997. Lowell
Decl. Tabs 22 and 23. The State Department responded by letter dated
July 25, 1996. Lowell Declaration, Tab 24.

* Plaintiff did not apply for an export license.

Date:__________________________		Date:__________________________

For the Defendants 			For the Plaintiff

Department of Justice			Professional Corporation
Civil Division, Room 1084		177 Bovet Road, 6th Floor
901 E Street, N.W.			San Mateo, CA 94402
Washington, DC 20530			Telephone: (415) 341-2585
Telephone: (202) 514-4782		Facsimile: (415) 341-1395