In The United States District Court
           For the northern district of California

daniel J. Bernstein,           )     no. c-95-0582-mhp
              Plaintiff,       )
vs.                            )     San Francisco, California
united States Department of    )     september 20, 1996
state, Et Al.,                 )
              Defendants.      )

                   Transcript Of Proceedings
        before the honorable Marilyn Hall Patel, Judge


for Plaintiff:               Mc Glashan & Sarrail
                             By:  Cindy A. Cohn, Esq.
                             177 Bovet Road, Sixth Floor
                             San Mateo, California  94402

                             Lee Tien, Esq.
                             Attorney At Law
                             1452 Curtis Street
                             Berkeley, California  94702

                             Steefel, Levitt & Weiss
                             By:  M. Edward Ross, Esq.
                             One Embarcadero Center, 30Th Floor
                             San Francisco, California  94111

                             First Amendment Project
                             By:  James Wheaton, Esq.
                             1736 Franklin, 8Th Floor
                             Oakland, California  94612

for Defendants:              Michael J. Yamaguchi, Esq.
                             United States Attorney

                             By:  Anthony J. Coppolino, Esq.
                             Department Of Justice
                             Civil Division, Room 1084
                             901 E Street, N.W.
                             Washington, D.C.  20530

reported By:                 Carl R. Pline
                             Official Court Reporter
                             Post Office Box 36052
                             450 Golden Gate Avenue
                             San Francisco, California  94102

friday, September 20, 1996                  12:19 P.M., O'Clock

          The clerk:  Civil action 95-0582, Bernstein versus
U.S. Department of State, for plaintiff's application for a
partial summary judgment, and defendants' motion for summary
          Counsel, your appearances, please.
          Mr. Coppolino:  Good afternoon, your honor.
          Anthony Coppolino with the Department of Justice
representing the defendants.
          The Court:  Good afternoon.
          Ms. Cohn:  Good afternoon, your honor.
          Cindy Cohn, Mc Glashan & Sarrail, representing the
          With me are co-counsel.
          Mr. Wheaton:  James Wheaton with the first amendment
project, your honor.
          Mr. Tien:  Lee Tien.
          Mr. Ross:  Ed Ross, Steefel, Levitt & Weiss.
          The Court:  Okay.  Good afternoon, counsel.
          Are you all by yourself?
          Mr. Coppolino:  I am distinctly outnumbered today,
your honor.
          The Court:  Okay.  I thought the government had
batteries of lawyers.
          Mr. Coppolino:  No.  We staff leanly.
          The Court:  I understand.
          And with respect to plaintiffs, who is going to be
          Ms. Cohn:  I am, your honor.
          The Court:  Anybody else?
          Just you.  So you brought all these people along for
moral support, or to give them appropriate credit, or... are
they resources to answer questions?
          Ms. Cohn:  They may be resources to answer questions,
your honor.  But I'm hoping that I'll be able to handle
everything myself today.
          The Court:  I'm sure.  I'm sure.
          A question which -- which may or may not be critical,
but... maybe it's more metaphysical.  But is encryption or
decryption something that you can define as content based?
          Ms. Cohn:  Are you asking me, your honor?
          The Court:  Either one of you.
          Ms. Cohn:  I'd be happy to respond.
          The Court:  Okay.
          Ms. Cohn:  I -- I think that the function of
encryption is content based.  Certainly the regulation of
encryption is content based.
          Because, first of all, the government is picking a
particular subject matter, and deciding anything about that
subject is regulated.  It's regulate -- or not anything,
perhaps, they're saying now, as they clarified it.
          But the regulation is based on the subject matter of
the material.  And I think that's classically content based.
          I also think it's content based for a second reason,
which is that the -- what encryption does is inherently... a
content-based issue.  It allows -- it allows privacy of speech.
and it's the content of the ideas there that allow the first
amendment protected activity to -- to happen.
          The Court:  Well, is that a whole new proposition or
theory that you're raising?  That... novel -- by -- by
referring to a theory, I mean a novel one under first amendment
law; that by -- by reason of the.... the ability of encryption
to... shroud conversation -- I don't mean "shroud" as a
pejorative, but shroud some conversation with some aura of
privacy that that is some separate basis for a special kind of
fifth amendment protection that we don't already have under
some other guise?
          Ms. Cohn:  Well, your honor, I think that the -- the
case law in the area of -- of protected expression -- I mean,
obviously, there's been no case that determined that
encryption -- methodology of encryption is first amendment
protected --
          The Court:  No.  Had that been the case we would --
          Ms. Cohn:  It would have been a much shorter case.
yes, your honor.
          But we do think that there are several strains of
first amendment law that lead easily to that conclusion and in
other contexts.
          The -- the first is that -- that -- the first is the
-- the cases that find that -- that compelled speech is -- that
a regulation that compels speech is unconstitutional.  And the
-- the lead case in that is hurley versus irish-american just a
few sessions ago.
          We think that by regulating in such a way that people
are compelled to speak to people who they don't want to speak
to -- and that's -- stepping back a minute, that's what
encryption does, it's an envelope.  And if you don't have the
electronic envelope, you send postcards.
          And when you're sending a postcard, you're speaking
to all the people on the way who can see the postcard.  When
you're sending an envelope, you're speaking to just the person
who -- who receives it on the other end.
          So we think that that line of cases on compelled
speech leads easily to the finding that electronic envelopes
should be protected.
          The other line of speeches -- the other line of cases
is the anonymous speech cases, Mc intyre versus ohio election
commission, where -- because, again, if -- if you're forced to
speak on the postcard, then you can't be anonymous in your
speech.  Putting it in an envelope allows you to be anonymous
in your speech.
          And the third, and I think a very important line of
cases, are the freedom of association cases.  And the lead case
is naacp versus alabama ex rel patterson, where the Court says
that compelled disclosure of who you associate with, and who
you speak with is a first amendment problem.
          And, once again, if you're forced to communicate on
postcards, then you're forced to disclose who you are
communicating with and the substance of what you're
          So I think that these line of cases all come to the
conclusion that there's a special first amendment problem when
what the government is trying to regulate is something that
allows privacy of speech.
          The Court:  But getting back -- that's -- that's a
theory that you have postulated for carving out a special area
for protection; namely, the right to speak confidentially.  If
-- if there is such a right.
          One generally thinks of the first amendment, of
course, as the right to speak out, and speak your views, and be
heard; right?  Without fear of -- of abridgement.
          Ms. Cohn:  Well, I -- I think that's true.  That's
one of the key things of the first amendment.
          But I think the first amendment is much broader than
that.  And that's where I -- that's where I think the freedom
of association is so very important.  Because that's first
amendment jurisprudence as well.
          That part of the ability to speak is creating a
bubble around the speech that -- that allows you to plan
things, especially political planning.  And -- and... speak in
a way -- speak freely.  And -- and if you take away the right
to control who hears your speech, then I think the first
amendment is greatly affected.
          In the same way that the Court held in the naacp case
that your ability to associate is greatly affected, if the list
of who you associate with can be made freely available.  People
are going to be chilled in what they say.
          The Court:  But that gets away, though, from the
question I was asking you about:  Is encryption content based?
          And does that not in fact perhaps... cut against an
argument that encryption is -- encryption is more like an --
the envelope; right?  It's not what's -- so it's the envelope;
it's not what's in the envelope.
          It's the form of communicating, not the actual
substance of the communication.
          Ms. Cohn:  Well, your honor, that's where
cryptography and especially cryptography that's -- that is
affected through the use of computer software kind of.... is on
both sides of the line I think.
          Because -- and that's what -- to me one of the things
that makes this case so interesting is that -- that... it's a
subject of mathematics, cryptography.  It's ideas.  The
regulation of the -- the regulatory scheme requires that the
state Department -- that the defendants evaluate the
cryptography, the cryptographic source code and ideas that you
send in to them.
          They've got to decide:  What can this be used for?
how strong is it?  Can we break it easily?
          And those are content-based descriptions.  They've
got to read it, and evaluate it, and decide whether -- you
know, in their discretion whether it's something that they
think ought to be -- require a license or not.
          And that's the whole process of -- the Cj process and
the licensing system sets up.  So it's inherently content
based, when you look at what it is they have to do to make it
          The Court:  Is it content based in the context of the
statute, and the purpose of the statute?  Namely, the statute
is -- the statute is not looking for recipes.  The statute is
not looking for... sort of household items, or... the -- say
the plans for or the patent application of an automobile, or
some -- some device.
          It defines by virtue of the kind of things that may
-- may be in the National interest that the United States does
not want its enemies, or other foreign -- or foreign countries
to get their hands on, whether it be in the form of weapons,
          Ms. Cohn:  I think --
          The Court:  .... some form of those, to what -- to
encrypt them.
          Ms. Cohn:  I think you're right.  When you look at
the statute, the statute doesn't mandate content-based
determinations by the State Department.
          I think that the problem of content-based regulation
comes in the regulations and the ITAR scheme.  And in the way
it attempts to carry out the very broad and unfocused mandate
that the statute gives them.
          So to the extent there's a statutory problem, I think
the statutory problem is that it doesn't limit their discretion
to create regulations that discriminate based on content.
          But I think that the real problem here is that the
regulations, which defendants have created as a result of this
very broad, very vague mandate, do discriminate based upon the
          The Court:  Do you wish to get into this
          Mr. Coppolino:  I do, your honor.
          The Court:  Or whatever it is.
          Is -- is encryption in and of itself, by virtue of
putting it in this statute, or in the regs, or decryption, is
that by its very definition content based?
          Mr. Coppolino:  Well, we think not, your honor.
          And this is really the heart of the beginning at
least of the first amendment analysis with respect to this --
the controls on this cryptographic software.
          The regulations provide that certain cryptographic
software devices and soft -- certain cryptographic devices and
software are controlled if they have the capability, the
capability of maintaining secrecy or confidentiality.
          I think where we fundamentally differ, your honor, is
that the functionality of a commodity, how it functions, its
technical capabilities, what it can do when it is loaded on to
a computer is not a content related concept.  And controlling
that technical capability; that that is your objective.
          Your objective is not to control the theory and the
idea of the software or the device, but your -- your objective
is to control what it can do.
          And in particular in this case the objective is -- it
can -- is to have some controls on the end use and end user, or
who is going to get these kinds of devices or this kind of
software, and potentially deploy it against the interests of
the United States abroad.
          If I could just step back a moment and -- and say
that the basic test for determining whether or not something is
subject to strict scrutiny is whether or not it is content
related.  And the supreme Court has made clear that that is an
inquiry which turns on whether the government's purpose in
relating the speech at issue is to control its content; is
disagreement with this message.
          So that has to be apparent either from the face of
the statute, or the regulations.  And examples where this has
been found by the Court before, for example -- and we cited a
number of cases in our brief -- but where the ordinance
specifically targets an idea, or -- or the content of speech.
for example, indecent speech is regulated in some statutes.
          A case I just finished with the -- the internet
indecency case, where the congress said:  If your speech is
offensive depictions of sexuality, it is regulated a certain
way.  That's describing the content.
          Another case -- a couple of these cases occurred
where ordinances regulating protest marches were governed on --
were -- were based on what people were protesting about.
          Whether it was about, for example -- for example,
there was a statute in washington which prohibited picketing in
front of a foreign embassy, where you were complaining about
policies of that government.  Clearly content oriented.
          The Court said that's got to be subjected to strict
          So the Court has to look to see whether the statute
and regulations are directed at the substance of ideas.
          And in this case we submit that it is not.  That it
is directed at the functioning of a product.
          Now, Ms. Cohn said something earlier with which we
agree to some extent.  There are two material facts regarding
cryptographic soft -- source code and software that are at
issue in the case.
          One -- and we've stipulated to both of these in the
joint statement of facts we filed about a week ago.
          One of them is that for those people who can
understand source code, who can read it, and figure it out, who
have that training, that source code and programming language
may have informative value.  That is sort of one fact out
there.  And at least for the purposes of this motion we -- we
don't disagree with it, because it's not dispositive of the
          The second key material fact is that the source code
has a functionality.  You can take it, you can compile it.  You
can -- by -- by pressing a button really -- it's a very trivial
step.  And then you can use it to execute and encrypt
          And that is really the second key factor.
          The question for the Court is:  Why does the
government regulate it, given those two qualities and
          We don't care if the idea implicit in the source code
is a brilliant idea, or not a very brilliant idea.  We don't
care about the theory.
          We care about what it can do when you load it on to a
computer.  We care about what it can do specifically overseas,
because we have concern that there's -- if there is no control
on the export of these types of products, that they will be
greatly available overseas.
          And U.S. technology, which is highly secretive in
advance technology, could then be turned around and employed
against the government... and potentially hinder a very
important National Security mission, which is to collect
secrets and intelligence abroad and find out, in some
instances, what -- what foreign militaries are doing on the
battlefield.  Very critical National Security interests.
          So that -- that's the main point.  That functionality
-- regulation of functionality is not a content-based concept.
          A couple of other points.
          Ms. Cohn referred to the doctrines concerning
compelled speech, and anonymous speech, and free association.
          The -- the problem with those cases, your honor, is
that the government is not regulating the use of cryptographic
software.  We certainly don't regulate the use or distribution
of the software in the United States.  If people want to use
the software in the United States to speak anonymously, they
can do that.
          And -- and to be candid, we don't regulate the use
abroad.  We don't really have jurisdiction to regulate the use
          What we relate is the transmission of the product
abroad.  And that is why those doctrines, free association and
compelled speech -- which arise in much different contexts than
the context of exporting a product with technical functionality
-- that's why those -- those cases don't apply.
          So that -- that's my view on the issue of -- on
whether or not it is a content-based regulation.  We believe
it's not.  Because it is -- it is really a function-based
          The Court:  Well... that didn't win you the day in
terms of whether it was speech or not.
          You are arguing that in fact the source code was --
was essentially functional.  It told the machine what to do,
and that was all; and, therefore, it was not speech.
          Mr. Coppolino:  Well, it didn't -- it didn't win me
the day on that, your honor.
          But, as I indicated in our papers, accepting that
proposition for the purposes of the motion, even though we may
ultimately disagree with it, is not dispositive of the issue of
why the government seeks to regulate the export of this
          And that --
          The Court:  But is the inquiry of why the government
seeks to regulate it the proper question or inquiry to
determine if it's speech?
          Mr. Coppolino:  No.  I -- I disagree.  Every -- every
case involving --
          The Court:  No.  I didn't make a statement; I asked
          Mr. Coppolino:  I'm sorry.  Then I don't disagree.
let me try to answer your question.
          Never disagree.
          The Court:  You're anticipating the opinion already;
          Mr. Coppolino:  The -- the point I'm trying to make
is that accepting your -- your opinion in the motion to dismiss
the source code that has expressive value, that doesn't resolve
two questions.
          One, what is the standard of review?  And, two, once
the standard of review is -- is established, is -- is the
regulation a violation of free speech?
          And the reason for that is that in every case
involving a regulation of speech, whether or not intermediate
or strict scrutiny applies, speech is at issue.
          The fact that speech is at issue is the starting
point, but it doesn't tell you what scrutiny applies, and it
doesn't tell you that the first amendment is violated.
          What scrutiny applies turns on the purpose of the
regulation.  That's very clear from supreme Court law.  Is the
regulation targeted at content?  That is, the inquiry that gets
you to whether or not it's intermediate or strict scrutiny.
not whether speech is at issue.
          Speech was -- was at issue in every case in which the
supreme Court has applied the intermediate standard of review,
because the regulations at issue in those cases all regulated
or affected speech in some way.  Either the time, the place,
the manner, which is intermediate review; or the content, which
is strict scrutiny.
          The question here then is not whether speech is at
issue; that doesn't end the inquiry.  It's:  Why is the
government controlling the export of this product?
          And we submit that the purpose is to control the
transmission of a product that has a technical capability that
could be used against the interests of the United States.
          That solves the standard of review.  And now we turn
to whether or not we satisfy that standard of review under the
intermediate standard of review.
          The Court:  But if -- but if the speech is -- the
encryption or decryption code is in fact speech, as this Court
has ruled, then why is not looking for the purpose for which
it's going to be used in fact not content based?
          Because you're looking at the content of that -- of
that source code.  You're looking at what is -- you may be
looking at what it's going to do, but you're looking at how
it's going to perform that task, and whether it's going to
perform it in a way that would reveal secrets that the
government is concerned about having revealed; correct?  Or at
least more easily.
          Mr. Coppolino:  Looking to how it performs its task,
looking at -- to -- as to what it can do, looking at -- looking
to its technical capability when it's loaded on to a computer,
appraising its strength -- its strengths and its weaknesses,
figuring out it works, is not related to its ideas.
          It's -- it's simply a matter on which I guess we're
just going to disagree.  I mean, I -- when you are assessing
what something does, and how it functions, and what it can do,
and there -- and controlling it for those purposes, it is not
an idea related -- it is not a content-related idea.
          The problem --
          The Court:  Then all encryption would be the same;
right?  Every encryption code would be the same.  Every
decryption code would be the same.
          Mr. Coppolino:  Actually, that's a good point, your
honor, because the regulations in fact distinguish between
various functions that cryptographic products and software have
which are not regulated.
          We do not regulate products, for example, and
software that merely authenticate the transmission of data,
whether the data being transmitted is the data that was
received.  That's called data authentication.  Not regulated.
that function is not regulated.
          There's another function which concerns whether or
not you've submitted -- whether or not you -- you should
properly have access to a system.  For example, password
          There is software which governs whether or not the
password you submitted on a particular computer is -- is the
correct password.  And we don't regulate that function.
          We do not regulate cryptographic products that are
limited to use in financial -- in -- limited to use in
financially related products.  That's also set forth in the
          So that shows that whether -- whether or not we
regulate the cryptographic software turns on its function, not
on its ideas.  And that is -- that is a very basic distinction
that I think is really at the heart of the case.
          The Court:  Well, is the idea of the source code
something that will identify whether or not it is translating
financial information, as compared to some other information
that the -- the party sending it wishes to keep secret?
          Mr. Coppolino:  No.  It's not the idea of the source
code; it is how it is used.  It is how it is applied.
          And in -- in the case of those other products I
described, you may in fact have a cryptographic algorithm that
applied in another way could do nothing more than maintain the
secrecy of information.
          But in that -- in the particular context of those
products; data authentication, access control... financial
institution products, the cryptographic source code, the
software, is used in a particular way.  It has a limited
function.  It is not, therefore, a general purpose data
confidentiality product.
          With Mr. Bernstein's software it was not limited to a
particular application.  Its purpose was to maintain the
secrecy of communications across the board.  That's what it was
used for.  And that's the -- and that is the distinction.
          Now, I --
          Ms. Cohn:  Your honor, I -- I apologize.  I hate to
break in --
          The Court:  Well, are you finished with -- let him at
least finish with that idea.
          Ms. Cohn:  All right.
          Mr. Coppolino:  I -- that's my -- that's my basic
point on that; that functionality --
          The Court:  He was close to finishing --
          Ms. Cohn:  Yeah, I thought he was.
          I suspected he was.
          Your honor, I guess I -- I just have to differ with
one factual assertion.
          Mr. Coppolino has asserted to you just now that the
content of -- of a particular piece of cryptographic software
is not at all related to its function.
          And -- and that's just -- I think, your honor, it's
just factually wrong.  That the -- that, you know, if --
          The Court:  Why?
          Ms. Cohn:  Well, because source code gives
instructions to the computer to tell it what to do.
          And if the instructions to the computer tell it that
all it is doing is authentication, those instructions -- the --
the content of those instructions is different than the content
of the instructions that are telling it to encrypt the data
          I mean, it -- it....  The content of the -- of the
source code is going to be different depending on what it's
          And so when they're making a distinction based upon
what it's doing, they're making a distinction based upon the
content of the source code at issue.
          And I just -- it's -- it's -- I don't normally like
to break in, your honor; but that's just factually the --
that's how source code works.  That's what it does.
          Mr. Coppolino:  What she's just described is a
function.  I guess we're going to have point, counterpoint.
          Or if you want her to do her whole argument --
          The Court:  That's fine.  That's fine.
          I couldn't --
          Mr. Coppolino:  What she's just described --
          The Court:  -- understand the complete argument.
maybe you did.
          Mr. Coppolino:  What she just described was
functionality, however.  The source code instructs the computer
to do a certain thing.
          And by -- by evaluating what the source code is
instructing the computer to do, we don't -- we're not trying to
control the dissemination of the theory of the source code.
          We're trying to control the function of what that
computer is going to end up doing, if that source code is
loaded into it.  That's our concern.
          There are many different types of cryptographic
algorithms.  They have different -- different mathematical
structures, and different mathematical approaches, but they
have the same function:  Maintain secrecy.  And that's the key.
but the theories of the algorithms differ.
          As you can probably discern from the submissions,
there are lots of different cryptographic algorithms, and they
maintain secrecy in different theoretical ways.
          We don't care about the theory; we don't care about
the idea Mr. Bernstein has, which was to take a particular type
of algorithm and use it to allow for an encrypted interactive
conversation.  That's his idea.
          We don't care about his idea; we care about the
result of what it can do.
          And the bottom line of my point to you is that
concern with how a product can function is not a concern with
its content; it's concerned with the technical capability of
something being used against you.
          The Court:  Okay.  If -- if the source code directs
to select out, just as if I were to tell you:  Okay, in
reviewing that document, select out the following -- and
essentially that's what, as I understand it, the source code is
doing in this case is select out -- or it may do that, select
out certain -- certain things that they recognize, and other
things they don't recognize maybe not -- you know, would not be
selected out -- but to select out certain ideas and encrypt
those -- or maybe it encrypts everything that -- you know, that
it reads.
          But... assuming that it did the former, that it just
instructs to select out certain information and encrypt that,
and then going back and decrypting, is not that selection
process of concern to the government?
          Mr. Coppolino:  The ultimate result is.  The -- the
ultimate result is of concern in the export controls; that is,
the fact that the product can function to apply to a
communication in text or in e-mail, and tell the computer to --
to scramble that communication, to make it gibberish, so that
it can't be intercepted and read, as Mr. Schneier explains in
his declaration, that's the concern.
          So -- and that is a functional concern.  It is a
technical capability that we care about.
          If the software doesn't do that, if it doesn't take a
text of a message, a plain text, and turn it into gibberish in
a -- in a manner where it can't be -- it can't then be read, we
don't care about it.
          If it can perform that function, we care.  You can
perform that function pursuant to different theoretical ideas.
there are different ways of writing the software to do it.
there are different algorithms, different theories.
          Don't care about the idea.  The ideas are freely
published.  The algorithms are frequently published for peer
review, as both -- declarants in both cases have agreed.
algorithms are published.  Theories are published.  Conferences
occur on how these things work.
          Don't care about that.  Care about the actual
implementation of the idea on a computer to create a function.
          Ms. Cohn:  Your honor, if I could bring us back to
the first amendment for a moment.
          I think it's important to recognize that what the
defendants are asking you to do here is to create a new lesser
protected category for speech, based upon what they've called
functionality.  A term that they haven't really defined very
          But....  And -- and I think that that's very
dangerous.  There's absolutely no support in the case law
anywhere for a lesser protected category of speech, based upon
functionality.  And they've cited none.
          But I think it's also important that it's not only --
you don't only look at what the government is intending to do
to regulate -- to evaluate whether a regulatory licensing
scheme passes first amendment muster.
          You also have to look at how they're doing what
they -- what they're intending to do.
          And there's no question that there are large problems
in the ITAR licensing scheme.
          The Court:  Well, let --
          Ms. Cohn:  Let's remember what happened here --
          The Court:  -- let me ask you this.  Let me ask you
          Does any of this discussion we just had, does it
really matter... if -- if there are problems with the licensing
scheme, such that it doesn't pass muster under the prior
restraint cases?
          Mr. Coppolino:  The discussion we just had on
software most definitely matters.  And I -- and I would like to
explain why.
          We have tried to sort out in an orderly fashion the
-- what we see are the two main things at issue here.  There
are really two questions.
          Can we license the export of software, cryptographic
software or source code?  That's one issue.
          And what we were just discussing about the
functionality of source code is critical to that issue.
          The separate issue that they have raised goes to
whether or not we license the publication of scientific ideas.
and this really goes to a separate part of the regulations
entirely, concerning how we control technical data.
          That part of the claim is a facial challenge to the
regulations.  But -- but that is separate and apart from -- I
think Ms. Cohn would agree -- separate and apart from the issue
of software.  That -- that is at least one discrete issue
within the case that I think the issue of functionality is
critical to.
          Because there's no question that the government told
dr. Bernstein that if he wanted to export his source code he
has to apply for a license.
          Therefore, the question before -- one question before
the Court is:  Does that violate the first amendment?
          And that goes to:  What's the standard of review?
why is the government regulating it?  And we say there's
functionality involved, and so on.
          That's one big, big issue that's on the table.  And I
think the Court recognized that in the motion to dismiss.
          Separate issue.  Does the government -- does the
government's overall licensing scheme with respect to technical
data have first amendment problems on facial grounds, vagueness
and overbreadth.  Separate issue.
          The Court:  But not -- but apart from both of those
you would agree that.... that the licensing scheme here is
something that obviously precedes any dissemination of the
various articles that are controlled; correct?
          Mr. Coppolino:  I -- I concede that it precedes the
dissemination of the -- of the software abroad.  That's why I
draw this distinction.
          We do not agree, and they have no evidence to show,
that the government regulates or licenses the mere publication
of a scientific idea, other than the idea implicit in the
source code.
          If -- if by regulating scientific ideas, Ms. Cohn is
arguing that we license the export of source code, we agree.
to the extent there is an idea in the source code, we license
it.  We license it for export from the United States.
          To the extent she is arguing that we license all
other types of publication of ideas other than software, we
don't agree, because we don't do it.  There's no evidence that
we do it, in -- in the context of controlling so-called
technical data, which is a completely separate part of the
          So, therefore, my answer to the question, your honor,
is that the threshold question is not the licensing scheme, per
se, because we agree that we license software.
          When we get to the issue of mere scientific
information, we don't license it publication -- or we don't
license its discussion in a -- in a classroom.  And that's a
separate issue which -- which I think is really one that, you
know, Ms. Cohn may want to address, but it's different from the
software issue.
          The Court:  With respect to the -- the software
issue, and to the extent it may apply to the technical data
issue, it is a predissemination licensing scheme; right?
          Mr. Coppolino:  If I could only quibble with your
term.  It is a preexport licensing scheme; we --
          The Court:  Preexport.  Preexport.
          Mr. Coppolino:  -- we do not regulate the domestic
distribution of software, period.
          The Court:  No.  I understand.  I understand.
          Mr. Coppolino:  Okay.  Then I agree with you.
          The Court:  Okay.
          Ms. Cohn:  Well, your honor, though --
          The Court:  So, therefore, we're really talking
about... prior restraint, in any event; right?
          Mr. Coppolino:  We are -- but, your honor, I think
prior restraint is a legal conclusion and term of art which
assumes that we are impermissibly controlling the export of
this item.
          The Court:  That's the issue.
          Mr. Coppolino:  Okay.
          Mr. Coppolino:  That's the issue.  That's exactly the
          The Court:  You have to -- you have to define it in
terms of the concept, or the -- in terms of the Constitutional
issue.  And it's awfully hard to draw attention to the
constitutional issue of prior restraint without saying those
words; right?
          Mr. Coppolino:  Fine.  Fine.
          License --
          The Court:  That doesn't mean you've already been
indicted and convicted.  Okay?
          In fact, that's not the process here in any event.
but -- but that's what we're really talking about.
          Does it matter whether or not -- you know, this
lovely discussion we just had about content, does it matter
what the content is if... the government's licensing procedures
do not pass Constitutional muster under the prior restraint
          Mr. Coppolino:  If I -- if I could just comment
          It has to matter, your honor, because if the control
of this product is not a violation of the first amendment, then
it is not a -- then it is not an impermissible prior restraint
under the first amendment to the Constitution.
          If you're simply going to say:  "the software
commodity has informational value; therefore, controlling it
before it's exported is an illegal prior restraint, no matter
what," then the case is over basically.
          And I suggest to you that is not -- that cannot be
correct.  Because if you agree with us that the software has a
functional capacity that is of legitimate concern to the
government, and that the purpose of controlling it is to
control that technical capacity, we do not violate the
constitution by controlling it.
          Part of the difficulty we have with this analysis is
it really does call into question whether or not software is
essentially and fundamentally speech in the first place.  It
may have communicative value, but it is ultimately a product
that functions.
          And so I guess that brings us right back full circle
          The Court:  I guess you want to come back full
          You'll get that chance again --
          Mr. Coppolino:  Thank you, your honor.
          The Court:  -- in another Court, with more judges.
          Perhaps even more wisdom.  Who knows?  But... in any
event, I would not -- I would not claim any great wisdom on it.
          But -- but looking at lakewood, lakewood had nothing
to do with what was in those newspaper racks.  It wasn't a
regulation that said:  Only newspapers, you know... involving,
you know... allegations against the democratic party, or
something like that; or allegations against the United States
government; or only newspapers that bear certain types of
pictures on them may not be placed in these news racks in
various locations around the city.
          It had to do with all newspaper racks; right?
          Mr. Coppolino:  Actually, I don't think -- I don't
think I agree with that, your honor.  I'm just flipping through
the reference in my brief.
          Well, the problem in lakewood was that it gave the
local authority, the mayor, complete discretion to decide
whether or not certain news racks would be able to go on public
          The Court:  Uh-huh.
          Mr. Coppolino:  And he could, therefore, decide:  I
like that newspaper.  I like its contents.  It can go.  I don't
like that newspaper; I don't like its contents; it can't go.
          And that -- that was the problem there.  It was an
absolute discretion to control a pure speech activity.
          And it's very distinguishable, in our view, from
deciding whether or not a particular product with a technical
functionality can be exported from a country, without first
knowing where it's going, and what use it's going to be put.
          The Court:  And how it does it.
          Mr. Coppolino:  And how -- we don't care how it does
it.  We just care that it does it.  That's the key; that it
does do it.
          Now, comparing that to a mayor's discretion to decide
whether a news corner can have that newspaper, but not that
newspaper, I think is a bit of a stretch.  It just doesn't fit
in terms of the analogy.
          The Court:  In terms of the.... how the decisions are
made with respect to the export licensing, how much guidance is
there... sufficient to take it out of that context?
          I mean, obviously, you're wed to the notion that this
isn't speech; it's really functional.  And, therefore, you
know, it's not the same.
          But if you get over that for a moment....
          Mr. Coppolino:  Sure.
          How much guidance is there to guide that decision?
          The Court:  Yes.  Yes.
          I was just trying to decide whether I could describe
the look on your face for the record.
          Mr. Coppolino:  I was just thinking of the right
answer.  And I've got one.
          (further laughter.)
          The regulations, as I indicated a few moments ago,
describe the types of cryptographic software that are subject
to control.  If your software doesn't do what the regulations
say, it's not covered.
          And that is what defines it.  The regulations are
very specific.  Data authentication, not controlled.  Financial
institution software, not controlled.  Access control, not
controlled.  Maintaining data confidentiality and secrecy --
          The Court:  Yeah.  A whole list.  Assembly, and so on
and so forth.
          But apart from those limitations, or exceptions, what
other guidance is there to --
          Mr. Coppolino:  Okay.
          The Court:  -- for the adjudicating officer, for want
of a better term?
          Mr. Coppolino:  This is an area I think where the
court -- if I understand your question correctly, I think
you're getting into an area that does involve discretion within
the executive branch to decide whether or not a particular end
use or end user of a software product is going to be harmful to
the National Security.
          We look at whether we -- the technical capability of
the product, we look at where it's going, and what it's going
to be used for, and we make a judgment as to whether or not
there is potential harm to the National Security.
          The Court:  Uh-huh.
          Mr. Coppolino:  I submit to the Court that that is an
exercise of discretion that is reserved to the executive
branch, because it does concern potential harms to our foreign
policy and National Security.
          And I -- and I believe that the case law in the Ninth
circuit is legion on this point.  It makes very clear that the
government has the discretion to decide whether, why, and for
what reason, a product is controlled for export for National
security and foreign policy reasons for --
          The Court:  I'm not questioning --
          Mr. Coppolino:  Okay.
          The Court:  -- the particular exercise of discretion
in a particular case.
          The question for first amendment purposes is:  Is the
whole scope of discretion sufficiently defined and clear that
it meets first amendment standards --
          Mr. Coppolino:  Right.
          The Court:  -- or is that discretion fairly broad, in
-- in gross, in macro; not with respect to each particular
          Mr. Coppolino:  I think it's limited.  I'll make this
comment, and Ms. Cohn can jump in.
          But I think it's limited for these reasons.
          One, first, it's software.  Not the ideas.
          Two, it's not all software.  It's some types of
          And, third, we regulate its functionality.  We look
to the end use, end user, and potential harm to National
security.  Which I concede the last part is an inherently
discretionary judgment call.
          But before you even get there, it's got to be
software; it's got to be software which performs a certain
          Otherwise, if you want to talk about an idea, if you
want to publish an article, if you want to distribute it in the
united States, no problem.  There's a lot of limitations on
that discretion.
          Therefore, it is properly narrowly tailored, and --
and satisfies the intermediate standard.  I think it satisfies
the strict scrutiny standard as well.
          Ms. Cohn:  Well --
          The Court:  Before you jump in -- he actually gave
you invitation this time.
          Ms. Cohn:  Yes.
          The Court:  But... before you do that and accept the
invitation, you mentioned something that sounded an awful lot
like the technical data aspects of that.
          Did I misunderstand you?
          Mr. Coppolino:  No.  I -- what I was trying to say
was that part of what limits the government's discretion with
respect to the export of software -- we'll talk about technical
data in a moment.  But part of what limits our discretion with
respect to the software is that in fact we only control
software product for export in this context.
          We don't control general publication of ideas and
          So the first limiting factor is, first, it's got to
be software; second, it's got to be a certain -- a certain kind
of software; and -- and then, third, you evaluate potential
national Security harm to it, which I concede is a
discretionary... judgment.
          The Court:  But with respect to -- and I thought I
heard -- what I heard you say -- maybe I misunderstood you, and
you were really talking about software -- was that -- that to
the extent it involves... scientific exchange of ideas, papers,
and so forth --
          Mr. Coppolino:  Don't regulate it.
          The Court:  -- that they're not regulated unless it's
going to be disseminated outside of the United States.
          Mr. Coppolino:  No.  No.  It's a different --
          The Court:  Am I wrong?
          Mr. Coppolino:  I think you are, your honor.
          The Court:  Okay.
          Mr. Coppolino:  It's a different point altogether.
          We distinguish -- perhaps Ms. Cohn may not -- but we
distinguish between a commodity that is listed on the United
states munitions list, category xiii(b), cryptographic
          The Court:  Right.
          Mr. Coppolino:  Okay.  Separate from that is
something called technical data, which is information,
scientific technical information, related to the commodity that
is necessary for the manufacture, development, and design of
the commodity.
          It's not the commodity itself; it is information
related to it.  We control the export of that information in a
different manner.
          And that is -- that is the nub of their second major
claim; that we control the publication of scientific ideas.
          We have set forth in our brief a number of points.
namely, that there's an awful lot of information that is
expressly exempted from the definition of technical data.  So
it is not even subject to export controls.  And we've laid that
out for you I think in our papers.
          And that greatly limits the discretion of the
government to reach out and say:  That information can't be
          We -- we specifically define information that's not
even subject to the regulations.  For example, information that
is published and is already in the public domain at bookstores,
news stands, libraries.  Information that is exchanged at
academic symposia.  Academic symposia occurs every year in
california on cryptography.  Broad, free-wheeling discussions
of cryptographic algorithms every year at U. cal., santa
barbara, and in other -- in other places.
          So we don't -- we don't regulate that.  We don't
regulate the publication of those ideas.  We don't regulate
the exchange of academic principles in a -- in a university
setting, or fundamental research published by universities.
          Multiple limitations to the discretion of the
government in controlling the export of technical data.
          The Court:  But does someone screen that data to
determine whether or not it -- it falls within some of the
          Mr. Coppolino:  No.  We do not, your honor.  We do
not tell people:  Come to the United States -- to come to the
united States Department of State so that we can find out
whether we'll let you put that in a bookstore, or a news stand,
or a library.  Come to us to find out whether we'll let you
teach it in a class.
          Director Lowell, the director of the State Department
agency in the case -- he submitted a declaration -- made clear
we don't regulate the information for export, and we don't
regulate the means by which it is published in the United
          The typical case is that a party -- a party comes to
the State Department and says:  My information is either
classified or proprietary, pursuant to a contract; I want to
export it to that foreign entity, because they are building a
very similar defense article, and they need my technical data.
or:  I want to go train them how to build it or maintain it.
          In that context, which is really a -- a conduct
context, we license the export of technical data.
          That was the classic case in Edler.  Edler wanted to
send -- in the Ninth Circuit case in Edler -- he wanted to send
blueprints of missile technology to a french company, and he
wanted to go help them figure out how to build it.
          That's a classic case of how technical data is in
fact controlled for export, in our -- in our view.
          While -- while I'm on the point, I would just like to
          The Court:  Well, with respect to that discretion, to
the extent that it's going to be exported, there is discretion
again within the Department for determining what -- whether it
comes within a category of material for which a license is
          Mr. Coppolino:  Well, with respect --
          Ms. Cohn:  That's right, your honor.  And it's easy
to see that, because they --
          The Court:  Hold on.  Wait --
          Ms. Cohn:  -- prosecute people who -- who make the
wrong choice.
          Mr. Coppolino:  But, your honor, the --
          The Court:  Yes.
          Mr. Coppolino:  -- I'm probably hogging the mike
here.  But I'll -- let me just try to answer your question.
          The discretion -- this is -- the issues with respect
to technical data are facial challenge issues:  Do the
regulations on their face violate the first amendment,
precisely because they give the government too much discretion?
          Viewed as a whole, the regulations limit discretion
by providing express and specific exemptions to the type of
information that is controlled as technical data.  That is very
clear.  There's a number of exceptions.
          And this process of amending the regulations has gone
on over the past -- over the past decade.  And we have tried to
address these very concerns, where academics were coming in and
saying:  Do your regulations mean I can't teach my class?
          Because there was a lot of concern about that in the
early 80's.  My own Department, in the Justice Department,
wrote three O.l.c. decisions, office of legal counsel, because
we shared those concerns.  We looked at those regulations and
said:  Wow, these could be read pretty broadly.
          And they were amended several times in order to
specifically address those concerns.
          Now, whether they have or not in a particular case
may be left where it applies -- as an applied challenge.  But
on their face the regulations draw lines to limit discretion.
          The Court:  Now, was it those -- under those
regulations that Mr. Bernstein's initial papers before this
action was filed were subject to review and.... and the Agency
          Mr. Coppolino:  It's -- the current regulations --
the regulations have been in place -- the current regulations
were in place at the time of Bernstein's Cj request, your
          The Court:  But, nonetheless, the government made --
decided I guess after the filing of the lawsuit, they must have
made a mistake with regard to exercising its discretion before
the lawsuit was filed.
          Mr. Coppolino:  I'm afraid I -- I just can't agree
with that, your honor.
          I think that the --
          The Court:  Well, what happened then?
          Mr. Coppolino:  The record reflects --
          The Court:  How come it changed its mind?
          Mr. Coppolino:  The record of the original
administrative determinations reflect that our focus was on
snuffle source code.  The first Cj determination --
mr. Bernstein submitted a letter, and said:  Commodity
jurisdiction for Snuffle 5.0 software.
          And the first response:  Cj determination for Snuffle
5.0 software.  Software determination.
          The second one, which is really the problematic one,
he submitted a commingled Cj, if you will.  He had his paper,
item two; he had his software, items three and four; and he had
instructions on how to encrypt, items five and six.
          We -- we looked at that, and we said:  These items
contain cryptographic source code for data encryption.  That's
what the statement said.
          And we -- we pointed out that -- I would point out to
the Court that we typically receive explanations of what the
product is and how it's to be used so we can figure it out.
          So my point to you, your honor, the long and short of
it is, we did not intend to regulate his ideas or his paper.
          Why would we regulate Bernstein's very brief
description of Snuffle, while there are articles and articles,
and conferences and conferences on all kinds of cryptographic
theories and algorithms?  We wouldn't do it.  We didn't do it.
          We regulated his source code.
          Ms. Cohn:  Well, your honor --
          The Court:  Ms. Cohn.
          Ms. Cohn:  Your honor, I wish the world was, once
again, as Mr. Coppolino posits it here; but it's clear that
when -- first of all, a very minor point on the facts.
          The letter that professor Bernstein got back says:
it appears that you have presented us with a stand-alone
strategic algorithm, and so a license is required.
          The -- the very words of what they told him was based
upon the algorithm.  Not based upon the source code.  That's
what they said.  And they said it again, and then he sent them
five separate ones.
          I just -- I think that -- I think that it's -- I'm
glad that we finally got back to exactly what happened in this
case here, because it -- it... directly refutes all of
mr. Coppolino's grand assertions about what they regulate and
what they don't regulate.
          They clearly didn't understand the distinction
between protected expression and nonprotected expression in
their determinations for -- for professor Bernstein.  I think
it's all protected expression.
          I mean, the government wants to divide up source code
in one category, and technical data in another category, and
then the noncode stuff that's defined as software as yet
another category.
          And our basic position here, your honor, is that it's
all speech, and you can't draw lines in between it when you're
          The Court:  Well, but for the purposes of the statute
and regulations they do define or treat differently items in
category, what is it, xiii(b) --
          Ms. Cohn:  That's right.
          The Court:  -- and what is defined as technical data.
          Ms. Cohn:  Right.
          But I -- but I just think that it -- for purposes of
first amendment analysis, it's all speech.
          And so the -- the tests that have to be applied
shouldn't be different based upon some allegations of
functionality, some -- some wild new category of lesser
protected or nonprotected speech we want to create.
          It's all -- the source code is speech, the technical
data is speech, the algorithm is speech.  And it's -- all three
of these things are regulated by the -- on the face of the ITAR
          The second point I want to make is about --
mr. Coppolino corrected you, and said that:  Well, instead of
"dissemination," he wanted you to use the term "export".
          I -- I think that it's important for us to all
remember how the ITAR defines export.  Because it's much
broader than -- than most people think of when they think of
what export is.
          Export of technical data is disclosing, orally or
visually, or transferring technical data, to any foreign
person, whether abroad or in the U.S.
          So the definition of export for technical data
includes domestic communication if a foreign person is in the
room.  It includes domestic publication if a foreign person can
-- if the information can be disclosed to a foreign person.
          And we know how many foreign persons there are in the
U.S.  We certainly know how many there will probably be in a
class that's taught by professor Bernstein, high-level
mathematics, at a major public university.
          So it -- it's not just export; it's reaching domestic
          The definition of --
          The Court:  Does -- does he save himself if he just
asks all of the noncitizens to get up and leave the room during
that part of the lecture?
          Ms. Cohn:  Well, I think you've got a fourteenth
amendment problem, your honor.  We don't discriminate based
upon citizenship in this country for who can take a class.
          And he shouldn't have to do that.  I mean, that's
part of the first -- you know, the four freedoms that were
outlined in the bakke case.  Who can teach, what can be taught,
who may learn, and what can you -- I forget the fourth one.
but who may learn is one of those things.  It's part of what's
protected under the freedom of academic expression in the
united States.
          But if I may continue, because it's important.
because domestic activity and publication is -- is triggered by
-- by all three parts of the definition of export.
          So I've talked about technical data.  Let's talk
about defense articles.
          Sending or taking a defense article outside of the
united States in any manner, except by mere travel outside the
U.S. by somebody who knows that -- you -- you can take your own
head out of the country, evidently, under the ITAR.  That's
c.f.r. 120.17(a)(1).
          Now, again, if you step back and you look at what
does publication in the United States mean, well, if you have a
book that's published by M.I.t. press, that's -- I have one
here -- it gets distributed internationally.  That's how
publication works.
          So if you're publishing a book -- in fact, here's one
called:  P.g.p. source code internals by philip zimmerman
(displaying book), it's going to get international
distribution, and you are sending or taking a defense article
outside the United States.
          That's how export reaches out into first amendment
territory.  It includes publication.
          The third area is defense services.  And this is
where we get into the problems of teaching more directly,
because it's:  Performing a defense service on behalf or for
the benefit of a foreign person whether in the U.S. or abroad.
          So, again, if professor Bernstein is teaching someone
how to use his software, he is performing a defense service
under the very language of the regulations.
          That's clear.  The facial challenge stands; that
export reaches out into first amendment activity.
          And so we can use the term export if we want to, but
let's be very clear about what it means.  It reaches out
several ways into clear first amendment activity.
          And when it does that, you've got to meet all of the
constitutional tests in order to regulate like this.  And that
includes prior restraint, it includes subsequent punishment.
          The -- there are two -- two tests here; the
government keeps trying to moosh them together.  There's the
prior restraint test, and then there's the strict scrutiny
under the subsequent punishment provision.  There's vagueness,
there's overbreadth.
          And then there's the question, based upon the A.p.a.
claim, the ultra vires idea in our complaint, which is:  Did
congress intend for export to be defined such that it reached
out into this kind of clear first amendment activity?
          And I think it's important to remember that -- that
although they claim they're just regulating export, they're
regulating much more on the very words of their statute.
          The Court:  Let me ask you the question I -- I
started out with in this last discussion; and, that is... in
order to do the prior restraint analysis... and particularly if
this -- the regulatory scheme does not measure up to that prior
restraint -- the prior restraint requirements set forth in
lakewood, and subsequent cases, does it matter whether we know,
or whether we decide, rather, whether encryption is really
content -- specific content based?
          Ms. Cohn:  It -- it does not, your honor.  There's
nothing --
          The Court:  Is the analysis any different, in other
          Ms. Cohn:  No, your honor, it is not.
          There's no -- there's not a case cited by defendants,
there's not a case anywhere, that says whether something is a
prior restraint or not turns upon whether it's content based.
          Content based is relevant for the discussion of the
subsequent punishment provisions, and whether strict scrutiny
applies or -- for those provisions.  But it is not relevant for
purposes of prior restraint analysis, either the Freedman or
the Pentagon papers analysis.
          The Court:  Well, you -- you heard what Mr. Coppolino
had to say with respect to... the first inquiry under the prior
restraint analysis.
          What is -- is this definite enough, are the
definitions, or the process that's described in the -- in the
statute and the regulations sufficient to... ensure that the
discretion that is being exercised is well-guided discretion
that will meet prior restraint requirements?
          Ms. Cohn:  No, your honor.  And it's not even close.
          Let's start with the easy one.
          The Court:  Why not?  Why not?
          Ms. Cohn:  Well, first... very briefly, let's start
with the easy ones, Freedman versus maryland.
          There's simply -- the procedure protections that are
required under that -- that case and its progeny simply don't
exist in the ITAR.  I don't think that they can -- can credibly
argue that they do.
          Now, as far as the other big piece of -- of prior
restraint analysis, the question of discretion, the -- the test
is -- is -- is set out in many cases.  The one I like to cite
is niemotko versus maryland.  Is -- is the discretion limited
by certain narrowly drawn reasonable and definite standards for
officials to follow?
          Well, I think we can look all the way across the
itar, and we can see that the standards aren't definite.
they're not reasonable, and they're certainly not narrowly
          The Court:  Can you decide that from just looking at
-- at the regulations, or does one have to look at how they
have in fact been applied?
          And I'm not talking about an as applied challenge, or
looking at, you know, whether the decision in a particular case
was exercised properly or not.  But, namely, looking at it more
for consistency over a number of cases.
          Or can you -- or can we decide it just based upon the
regs and the statute itself?
          Ms. Cohn:  I think that a facial challenge is based
just upon the regs --
          The Court:  Yes.  That's true.
          Ms. Cohn:  -- and the statute itself.
          The Court:  And you think it can be done that way in
this case.
          Ms. Cohn:  I think that you -- you could do it that
way in this case, but I also think there's a wealth of evidence
that they're exercising that discretion in a way -- exactly
what happened to our client here.
          I mean, he's been told that he can't post his source
-- he can't publish his source code on the internet without a
          So -- and there's no -- there's -- you know, they've
had the discretion to say that.  We've had to bring massive
constitutional litigation to get that question over... looked.
          They had broad discretion.  And you can see the
discretion several ways in what happened to our client.
          First of all, they took the definition of
software.... they took the definition of, you know, information
-- let me back up.
          The definition of technical data normally includes
software.  But the defendants exercised their discretion to
decide that all software is technical data, except
cryptographic software.  That's not.  That's -- that's over
here on the defense article side.  They just shifted it over,
just like the (I).  And, suddenly, although all other software
is information, technical data -- cryptographic software is
          They just --
          The Court:  Well, is there any other kind of software
that... is not embraced in technical data?
          Ms. Cohn:  I'm not aware of any.
          Mr. Coppolino, you might know the breadth of the
itar.  I mean, there are many things on -- on the -- on the
itar.  It's a very long list.
          Mr. Coppolino:  And I -- I was just going to say I
believe that what the regulations provide is that software is
presumptively treated as technical data.  Except for a specific
exception listed in section 121.8(f) of the regulations, which
says that:  If you want to export software, apply for a
technical data license, unless it's specifically enumerated on
the United States munitions list, which includes, example,
category xiii(b), cryptographic software.
          Now, your honor, I haven't read every --
          The Court:  Are there any other....
          Mr. Coppolino:  I believe that there are, your honor.
and I would have to read the regulations.  But I -- I believe
that there are.
          But it would -- it would really be apparent on the
face of the regulations themselves.  And I've obviously just
focused on --
          Ms. Cohn:  Your honor --
          Mr. Coppolino:  -- on this case.
          Ms. Cohn:  -- I'm not aware of any.
          But I think neither Mr. Coppolino nor I would
consider ourselves conversant in the breadth of the very long
list in ITAR.
          The Court:  Well, and that may not be a good use of
our time anyway.
          Let -- let me get over to the technical data issue
for a moment.  And that's where we get into Edler; right?
          Ms. Cohn:  That's right, your honor.
          The Court:  Let -- let me ask you this.
          Is Edler enough?  Do I have -- do we have any plans
for Edler?  That's a Ninth Circuit decision.
          You would agree that I'm bound by that; right?
          Ms. Cohn:  I think you're bound by the -- the Edler
decision, your honor.
          But I think that there are several ways in which you
can find that the... Edler decision, first of all, doesn't
apply as to the source code.  And we all agree that that's --
the defendants have categorized that as a defense article.
          So the narrowing of the definitions of technical data
doesn't have anything to do with the source code.  It also
doesn't have anything to do with the category of noncode items
that are defined as software under 121.8(f).
          It's important to remember that the definition of
software in the ITAR -- that's another area of wide discretion,
in that it's not only source code, it's algorithms, design
flows, logic flows, all sorts of other things are defined as
software by defendants.
          So to the extent we're talking about the technical
data provisions, we're not talking about the regulation of
algorithms, we're not talking about the regulation of source
          So Edler just doesn't apply to -- to narrow that at
          The Court:  "Edler" or "eedler," how do you pronounce
          Ms. Cohn:  I'm sorry, your honor?
          The Court:  What I really want to know is:  Is it
still good law under Freedman and --
          Mr. Coppolino:  Well, it is most definitely still
good law under Freedman, your honor.
          And here -- here's why.
          Freedman -- first of all, I don't even think Freedman
applies in this case.  Freedman was a case in which the supreme
court said that before you can show what might be illegal
speech, obscene speech -- no protection at all -- you've got to
have a prescreening program to determine whether or not it in
fact is illegal.
          And the Ninth Circuit applied Edler in spokane
arcades in precisely that manner.
          The real -- the other -- the other licensing cases
that the plaintiffs cite; niemotko, and lovell versus the city
of griffin, and staub versus baxley, and shuttlesworth, these
were regulations of pure speech activities; whether or not
people could pray with the bible in the park, whether or not
people could meet for union activities in their homes, whether
or not a civil rights march could occur in alabama.
          In all of these cases the local government said:  You
can't do that, unless we tell you you can do that.
          Completely -- the -- the analogy is simply not there.
those cases are inapposite, clearly.
          Now, what -- what was Edler about?  Edler -- talk
about an apposite case -- Edler was about these very
regulations, technical data provisions of the international
traffic and arms regulations, a version that existed in 1978.
          And we've given you all the versions through the
          And the Court of Appeals looked at those regulations
and said:  Boy, these could be construed expansively to cover
all kinds of scientific exchange.  These are very broad.
          In 1978 the regulation suggested that any discussion
of technical information, including at a symposia, was an
          There also was a little mischievous footnote which
said that:  If you want to publish something, you better come
and ask us first.  That was the 1978 version.
          The government -- the Court of Appeals said:  Well,
this -- let's construe these regulations in a Constitutional
manner -- which -- which is of course the Court's obligation --
to look at the face of the regulations and determine whether or
not a narrow construction is possible.
          And the Court in Edler recognized what the purpose of
the regulations was.  It was to control the dissemination of
technology directly related to a defense article, in order to
control the conduct of somebody assisting a foreign entity in
building one of these munitions on the munitions list.
          In other words, we control the export of the
munition.  But we also control the conduct of people who are
going to help others build the munition.
          Edler said:  That's Constitutional, no prior
restraint, no overbreadth.
          What's happened since Edler?  In 1984 --
          The Court:  But wouldn't they, in order to do that,
have to build in a scienter requirement?
          Otherwise --
          Mr. Coppolino:  Yes, there was a scienter
          That's most definitely right, your honor.  There was
a -- if you intend in your export of technical data to assist a
foreign entity in developing a munition, the government can --
can regulate that, and it's not -- it's not a speech problem.
          Now, we have said -- I would just like to finish this
thought on Edler, if I may.
          We have said -- first of all, in 1984, the Department
of State, after years of concern about these regulations,
including from the Justice Department -- we were on their case
for four years, saying:  You've got to amend your
regulations -- issued a federal register notice in 1984.
          First thing it said?  We've going to follow Edler now
on technical data.
          And then it went on to amend the regulations, took
out that footnote about prior approval of publication, put in a
public domain exception, put in an exception for commonly
taught academic activities.  And through the years it has added
to that list.
          What the Court has to do, I think, on the issue of
technical data, is that it has to do what the Court of Appeals
did in Edler, only it has to do it for the current version of
the regulations, and assess -- on their face now -- whether or
not discretion to control first amendment activities has been
limited in a reasonable manner.
          And on their face, I submit to the Court, that the --
the very specific exceptions that are in there -- in there
indicate that in fact that discretion has been eliminated --
has been limited.
          Let me make one point about the issue of algorithms,
because it's a point that the plaintiffs raise quite often.
          The definition of software includes, among other
things, algorithms.  Plaintiff's own declarant explains why
this is the case.  To get from an actual algorithm to a
functioning software product is not that difficult a step.  You
have programming language, and then you've got source code, and
then you compile it, and then you have object code.
          There is an algorithm in every cryptographic source
code.  And there's an algorithm in object code -- at least it's
reflected in the object code.  That's why algorithm is included
in the definition of the software.
          Do we regulate algorithms, per se?  Articles that --
that describe algorithms, or even the algorithm itself?  The
answer is:  No.
          Doctor -- deputy director crowell of N.s.a., and one
of plaintiff's declarants -- I'm not quite sure I remember
which one; I think it was Mr. Schneier -- both pointed out that
in the area of cryptography algorithms are published all the
time, so that people can test them.
          You don't have a good cryptographic algorithm unless
it's gone through peer review, and people can determine whether
or not it's effective.
          We don't regulate that process.  We've given you
articles which have algorithms; we've given you articles which
-- which test algorithms.  So algorithms, per se, aren't
regulated.  It's the implementation of the algorithm which is
          But I digressed from your answer (sic) in Edler.
edler definitely applies.  And the regulations are much more
solicitous of speech than they were in 1978.
          The Court:  Well, let me ask you this.
          The -- the amended regulations that you're referring
to do they comport with -- would they pass muster under the --
under the Department of Justice's earlier memos?
          You referred to two, or are there three opinions?
          Mr. Coppolino:  There were three.
          The Court:  There are three of them.  Okay.
          Would -- would the amended regulations -- do they
pass muster under those guidelines?
          Mr. Coppolino:  Well, O.l.c. hasn't written an
opinion since `84.
          But our -- our position here -- and, by the way, you
know, those opinions are interesting analyses, but ultimately
it's your decision.  But the answer is:  Yes.
          The Court:  I understand that.
          But you would like me to buy the Department of
justice's opinions; right?
          Mr. Coppolino:  I -- and I'm in the Department of
justice, and I talk with O.l.c. every day.
          And --
          The Court:  But --
          Ms. Cohn:  And they told you they didn't mean it?
          The Court:  -- I'm -- I'm curious as to, you know,
the fault they found, and the admonitions --
          Mr. Coppolino:  Absolutely.
          The Court:  -- they gave, et cetera.
          Mr. Coppolino:  Here's the fault --
          The Court:  Do they do -- do the amended regulations
meet their objections, and take care of those objections, or --
          Mr. Coppolino:  I believe --
          Ms. Cohn:  Your honor, if I may --
          The Court:  Hold on.  Hold on.
          Mr. Coppolino:  Yes.  The answer is:  Yes.
          The principal problem that O.l.c. identified over the
years was:  Your regulations just say:  We regulate the export
of technical data, and that includes disclosure in the United
          And O.l.c. said:  What does that mean?  Does that
mean in a classroom?  Does that mean if you publish an article?
does that mean in a symposia?  This is too broad.
          So what did the State Department do?  It amends its
regulations, and it says:  The definition of technical data,
120.10(a)(5), does not include information concerning general
scientific or mathematical ideas commonly taught in schools.
intended to address an O.l.c. concern.
          It does not include general system descriptions.
intended to address O.l.c.'s concerns.
          Then it made the public domain provision totally
separate.  Again, intended to address O.l.c.'s concerns.
          And it added to those exceptions; symposia,
discussion, fundamental research, and the like.
          And I would say to the Court that these -- these --
the amendments that were made from 1984 I think to about 1993
all were trying to address these concerns.
          In response to a facial challenge, I think the Court
would have to conclude that the State Department has made
efforts to tighten up the meaning of these regulations, and to
exclude fundamental first amendment activities, such as
publication in new stands, bookstores, and libraries,
symposia... academic teaching, and the like.
          So I believe that the answer to your question is
these go a long way, if not entirely, to passing muster under
o.l.c.'s analysis.
          I can't predict to you that we're going to get a
weird as applied case, which is problematic.  But on their face
they clearly do.
          And there's no evidence -- and I want to stress this
point -- no evidence that the government regulates scientific
publication in the United States.  No evidence that we regulate
symposia.  We don't give people licenses to go to U. cal.,
santa barbara, every year for the crypto conferences.
          No evidence we have to license teaching.  There are
people teaching crypto all over the country.  You saw the
textbooks that we put in the record.  We don't license that
          So people, obviously, are not being chilled.  And
they're not -- they don't find the regulations vague, because
there's a very vibrant exchange in this area that occurs every
          The Court:  Ms. Cohn.
          Ms. Cohn:  Well, your honor, first of all, I -- I
would suggest that Mr. Coppolino reread what the O.l.c. said.
          Because O.l.c. was presented with a pre -- a draft of
the amended regulations with these changes in it, and said:
they don't do it.  You've still got problems.
          Indeed, even after the Edler case.  And the State
department came out and said:  Oh, well, now that Edler has
been decided, we follow Edler.
          There's a -- a memo, and it's attached -- I believe
it's exhibit c to Mr. Tien's declaration, from a woman named
kathryn fuller in the O.l.c.'s office, saying:  It still
doesn't pass first amendment muster.
          So I think that the -- the term -- the very words of
the O.l.c. memos contradict what Mr. Coppolino is saying here
          Secondly, the fact that there is speech doesn't mean
that there's no first amendment problem.  He's turning --
mr. Coppolino is turning the first amendment analysis on its
head.  It's as though he said:  Look at the library; there's
all these books here.  There can't possibly be a problem with
just this one little book that we don't want to put in there.
          Well, that's not the way you look in a first
amendment analysis.  The government doesn't -- doesn't dispute
that they control the publication -- the electronic publication
of source code.  They do.  They -- they require a license for
          So that, in and of itself, shows that they're
reaching first amendment speech.
          As far as technical data is concerned, let's look at
what they've told people who have asked them.
          We presented several declarations.  First and
foremost, our client, who was told he couldn't publish any of
his items, regardless of the fact that some of them were
technical data.  They've now said some of them are technical
          Second, let's look at what happened when Mr. Junger
(phonetic) asked.  He was told:  You need a license.
          Let's look at what Mr. Schneier -- let's look at
whatever -- whenever somebody asks the Justice Department, the
answer is very clear:  You need to register as an arms
exporter, and you need a license.
          Mr. Coppolino:  Might I address that, your honor --
          Ms. Cohn:  Now, the fact that there are people who
don't ask, who go ahead and publish, and who aren't summarily
sent to jail...
          The Court:  Summarily?
          Ms. Cohn:  Well...
          Ms. Cohn:  .... who are not prosecuted, doesn't mean
that there's not a Constitutional problem in this scheme.
          We have to look at the chilling effect.  And we have
presented with you -- you with several declarations of people
who say that they've been chilled by this scheme.
          Mr. Coppolino:  Your honor --
          Ms. Cohn:  You don't look at the discussion that's
going on; you look at what's been chilled, for purposes of the
first amendment.
          And we've presented you with evidence, lots of it, of
the chilling effect here.
          Mr. Coppolino:  I would like to address that point.
that is very important.
          The Court:  Yes.  Briefly.
          Mr. Coppolino:  Briefly, your honor.
          The Court:  We have to move on.  It's 1:30.
          Mr. Coppolino:  Every declarant that submitted a --
that submitted a declaration here, every one of those cases
concerned source code or software.
          Some of them were commercial products, not just an
academic who wants to put his source code on the internet.
some of them were commercial products, including a web browser.
every one of them was software.
          So their evidence of the -- of the regulation of
academic speech was controls on software.  We have been
consistent on that.
          Mr. Johnson had a software product which was licensed
through the commerce Department.
          Mr. Behlendorf, a software product, a web browser.
          Mr. Demberger, source code, on the internet.
          Mr. Schneier talked about the diskette which was at
issue in the Karn case, which we won, by the way.  The Karn
case was a diskette of source code, and Judge Richey in D.C.
said:  No first amendment problem; no -- no --
          The Court:  I know.  Judge Richey and I talked about
          Mr. Coppolino:  Ex parte evidence.
          Professor Junger has filed a case in cleveland which
i'm handling.  And professor Junger never even gave us his
software.  We don't know what professor Junger's software is.
he never gave it to us.  He talked to us on the phone, and he
filed a lawsuit three years later.  But it appears it's
          All of the cases were software, your honor.  There is
no evidence that we license the publication of scientific
ideas.  If we had, a Court would have heard about it by now.
          I -- there's -- there are plenty more examples of
what I submitted to the Court that -- that show that there's
vibrant exchange of publication of ideas.
          I think Ms. Cohn has basically conceded with the
evidence she has submitted that the case is about software.  So
you can forget about the technical data facial issues, and
decide whether the export licensing of technical software
violates the first amendment.
          Ms. Cohn:  Well, your honor --
          The Court:  I don't know that I can forget about
them, but --
          Ms. Cohn:  -- I don't -- let me make my own
          The Court:  -- if we don't get to the vagueness
issues and overbreadth, we can forget about those, I mean, at
least as far as oral argument is concerned.
          And is there any need to get to those, or anything
you want to add with regard to the vagueness or overbreadth
          Ms. Cohn:  Well, just a -- a couple of points, your
          I think that our vagueness analysis is important for
-- for taking a look at the breadth of discretion here.  And
that flows through all of the questions that go to -- that go
in.  And I think it's important that -- that -- to take a look
at the three or four examples that we pulled out of the
regulations, where things are vague.
          And I think the most important ones to look at are
the definition of export, which is much broader than what most
people think about export.
          Most people don't think that talking to a person who
is not a U.S. citizen in the United States is export.  The
government thinks it does.  And I think it doesn't put people
on notice.
          Secondly --
          The Court:  Well, but the question is not what most
people think it is, but is it sufficiently defined in the
statute or the regulations; correct?
          Ms. Cohn:  But I don't think it gives adequate notice
to people.  And I think there's a second part of -- of the
vagueness analysis that defendants didn't really address in
their papers that's important for us to remember, which is --
which is again the question of discretion.
          I mean, vagueness has two pieces.  The first is fair
notice.  And the second is minimal guidelines for law
enforcement, coming out of the Kolender case, and some of those
other cases.
          And I think that -- that there are not minimal
guidelines; that exhibit a is what happened to defendant; I
mean, they -- to -- to plaintiff.  They didn't know what was
covered by their regulations and what wasn't, evidently.
          And it wasn't until we sued, and they got the very
smart Mr. Coppolino involved that they realized evidently that
they made a mistake.
          The Court:  And now they've all been fully trained by
mr. Coppolino, and they know the right answer; correct?
          Ms. Cohn:  But, your honor, it has to be clear in the
regulations.  They have to be bound by them, especially when
they've got a conclusion of judicial review.  It means that you
have to mount this kind of huge Constitutional problem when
they overstep their discretion.
          It's exactly the kind of problem that prior restraint
analysis is supposed to -- is applied to.  You shouldn't have
to ask.  You shouldn't have to sue in order to speak.
          That's -- that's the whole -- that's the big
difference between a prior restraint problem, and a subsequent
punishment problem.
          And here they are restraining prior to publication,
and then people are going to have to sue and raise
constitutional claims in very narrow areas when they overstep
their discretion.
          I think that the Cj process admits vagueness.  The Cj
process applies when doubt exists as to whether something is
covered or not, or how it's covered.
          And -- and by -- by creating this process, I think
they've admitted that there's a problem.  That people -- there
is doubt that exists, and that they -- that people don't know
what the regulations mean.
          I think the other important question for vagueness is
the exemptions.  Because Mr. Coppolino has made such a point of
talking about how they are so -- they so clearly protect
          And let's look at what the words of the reg -- of the
exemptions say.  They say that they -- they protect general
principles, fundamental research, that are commonly taught at
academic institutions.
          I think that when you're faced with a choice of
speaking, and if you're wrong, you go to jail, or -- or have
civil penalties against you; or not speaking --
          The Court:  But you might have a very good defense.
          Ms. Cohn:  Well, perhaps.  But you shouldn't have to
have a defense.  That's what prior restraint is about.
          The -- the -- you know, what is general principle?
well, general principle ends up being what the government
thinks it is.  Because they're the ones who decide whether to
prosecute you or not.
          And also, of course, under chevron they're going to
have the discretion to interpret what general principles are to
the extent that they -- they -- that they're reasonable.
          So it creates a giant chilling effect.
          You know, what's commonly taught?  What's fundamental
research?  What's general principles?
          And by claiming that they don't claim to make that
decision for people, I mean, they're just being disingenuous.
of course, they do.  They decide who is going to go to jail
because they guessed wrong.
          And so I think that they -- what -- what happens
here, even if they don't exercise... their authority -- their
discretion to prosecute people, is that they -- they create a
chilling effect.  And that's a -- a big first amendment
          The Court:  One -- one of the questions I have -- and
i think probably it's better addressed to Mr. Coppolino, since
it's quote his "statute"; right, or regulation -- is the
regulation that defines a defense article, which I understood
to be a term of art, and distinct from technical data, as
meaning any item or technical data designated in.
          Ms. Cohn:  That's right.
          The Court:  You know, I -- I find that confusing.
          Mr. Coppolino:  Right.
          But, your honor, you cited --
          The Court:  I know that my being confused is not a
test, but....
          Mr. Coppolino:  But you've cited one sentence in the
entire regulation.  And I --
          The Court:  Right.  Right.
          Mr. Coppolino:  -- and I would ask the Court to, I
think, assess the regulations as a whole.
          But these provisions --
          The Court:  But how do you deal with that definition,
          Mr. Coppolino:  Right.  Here's what --
          The Court:  Is technical data a defense article or
          Mr. Coppolino:  No.  It's not.  And I'll tell you
          The definition of technical data means information
which is required for the design, development, production,
manufacture, assembly, operation, et cetera, of defense
          Defense article and technical -- technical data are
separate things.  One is a commodity in the U.S.m.l.; section
21 lists the commodities, the items.  And technical data is the
information related thereto.
          I think viewed as a whole there's no question that
there's a clear distinction in the regs between commodities,
such -- such as software; and technical data, which is
information related to the commodities themselves.
          Ms. Cohn:  Well, your honor, if I might just butt in.
i mean, software is technical data in one context, and it's a
commodity in another.
          And, of course, that -- that particular context
depends on what the government decides.
          I mean, that's -- that's vagueness.  That's -- that
doesn't put people on fair notice.
          Mr. Coppolino:  The regulations specifically say
cryptographic software is a defense article.  So it's clear.  I
mean, there's no -- you have fair notice of that.
          With respect to the -- one point I didn't raise
earlier is that with respect to the definition of technical
data and the export of that, including disclosure in the United
states, before you get to that it has to be technical data.
          And all of the information that is exempt from the
definition of technical data, if disclosed in the United
states, is not an export.
          So you don't get to that issue if it doesn't fall
within the category.  And the category has multiple...
          Those exemptions are not vague; they are -- they are
reasonably construed to be very clear.  We don't decide.  We
don't have a bureau of commonly taught academic principles,
it's true.  We don't decide what those are.  We don't have a
book that says what's a commonly taught academic principle.
          That is in there to provide academics some assurance
that what they do in their everyday common occurrence of their
classroom is not regulated.  We don't license classroom
discussion.  And that's what that provision, on a facial
challenge, is reasonably construed to mean.
          If some professor wants to come in here and say:
"you prosecuted me for teaching my class," then -- then that
might be a tough as applied case, and I don't think that's ever
going to happen.
          But the regulation on its face tries to set forth
general categories so that people know that what they're doing
is not going to run afoul of the -- the export control laws.
          The Court:  But what is -- I mean, how is a
reasonable reader to understand what that term means, "general
principles," and some of the others that have just been
referred to?
          Are they supposed to -- you say they're supposed to
know that just because they're an academic teaching in
universities; right?
          Mr. Coppolino:  I think the Court has to -- has to
decide whether or not a person of ordinary intelligence would
understand what that means.
          And the term -- the term States:  General scientific
          The Court:  What section are we looking at?
          Mr. Coppolino:  I'm looking at 120.10(a)(5).
          The Court:  Okay.  Got it.  Uh-huh.
          Mr. Coppolino:  And it talks about commonly taught --
let's see, I'm sorry.
          Technical data does not include information
concerning general scientific, mathematical, or engineering
principles commonly taught in schools, colleges and
          Now, Ms. -- Ms. Cohn is arguing that we decide what's
commonly taught.  We don't.
          The purpose of the -- of the exception, as director
lowell pointed out, was to let the academic community know that
what occurs in their classrooms is not subject to regulation.
          The question before the Court is:  How do you
construe that on a facial challenge?  Do you take the most
unreasonable position, and say that this means we have -- the
government licenses every academic exchange in a classroom?
which would come as a shock to most teachers who are out there
teaching cryptography, physics, chemistry every day.
          Or do you construe it to mean it's an exemption from
what's covered from export controls?
          In the absence of evidence that we do anything like
this, it's not possible to conclude that this is going to
create a chilling effect.
          A chilling effect on the first amendment can't merely
be subjective; it has to be a real concrete indication that
there's in fact threatened prosecution and threatened injury
here.  And there is not.
          And -- and that's why I think that the Court can
readily construe -- construe this and other -- and other
exemptions to pass muster.  Some of the other exemptions are
quite specific --
          The Court:  We talking now about facial challenge.
we're not talking about as applied challenges; right?
          Mr. Coppolino:  That's right.
          The Court:  And the question, you know, in that
context is... you know, whether -- whether the terms as used
are vague; correct?
          And whether one --
          Mr. Coppolino:  Yes.
          The Court:  -- you know, of ordinary and reasonable
intelligence would -- would be able to understand what that
means; is that correct?
          Mr. Coppolino:  I think that's the standard, your
          I -- I think in this rather unique context, I
wouldn't -- I think that we're talking about an area of -- of
policy that a lot of people don't have any knowledge of.  But
for the people who are certainly in this area these terms
should be understood.
          Now, let me make this point.  Their own declarants
describe the differences between the various software;
confidentiality, authentication, financial.  They -- they
describe those terms, and they also describe the define -- why
algorithm is in the definition of software.
          The Court:  But if -- if these persons are wrong in
their definition, it's -- the government's definition is going
to control at least with respect to any -- any licensing;
          Mr. Coppolino:  The -- the government has tried to
set forth exemptions on what is not controlled.  We're not
describing what is controlled.  We are describing what is not
controlled, what you are free to do.
          And these are, you know --
          The Court:  But it it's not your general principle,
and even though it may be theirs, then it's controlled; right?
          Mr. Coppolino:  In the -- no, your honor.
          In the supreme Court case of grayned versus city of
rockford it talks about this subject.  It says:  Language is
unavoidably inexact.  You can't describe with meticulous
specificity every single circumstances which may or may not be
          What the Court looks to in that context is whether
the regulation has -- has been drawn with reasonable
flexibility.  Whether there has been some attempt to draw lines
to protect first amendment activities.
          On their face these regulations do that.  If -- if
you pose a very difficult hypothetical, I think that has to
wait for the as applied case.
          But, facially, they have gone a great length to -- to
try to resolve these potential first amendment concerns that
have been raised -- that were raised many years ago, and were
-- and they've tried to address over the -- over the past
          I have one other point -- if she wants to respond to
          But there's one other point on overbreadth that I
really feel I need to raise.
          The Court:  Yes.
          The reporter:  I think I've had it.
          The Court:  You need about five?
          The reporter:  At least.
          The Court:  Okay.  We're not going to go much longer.
          How much longer -- how long will it take you?
          Mr. Coppolino:  I have -- have a comment that will
take about two -- two to three minutes.
          The only point I wanted to make on overbreadth, your
honor, is that it's -- it is a standing doctrine.  And a party
under overbreadth can raise the interests of third parties not
before the Court that are different from his own.
          Bernstein is here raising the interests of academics,
who want to publish scientific ideas, including posting source
code on the internet.
          The reason this is critical is that overbreadth is --
asks the Court to invalidate the statute in all applications,
all conceivable applications.  The statute is void.
          We have a plainly legitimate sweep here; we apply
technical data controls to all the munitions.
          And if you were to strike down the technical data
controls as to all munitions, there's simply no evidence in the
record suggesting that technical data controls cannot be
applied properly to the many, many munitions that we do apply
it to properly.
          Similarly, with cryptographic software.
          Mr. Bernstein is an academic who says he wants to
post the source code for academic reasons.  But there are many
commercial software manufacturers who are selling their
software, very powerful software.
          I don't think overbreadth applies here.  He's
claiming his interests are being violated.  That's my point on
          Oh, the other last thing I'll say is --
          The Court:  No.  That's it.
          Mr. Coppolino:  Well, they -- they're going to go for
a P.I. -- I don't know if the Court is aware of that -- on his
teaching, and we're back here in a couple of weeks.
          And... I have a lot of concerns about that, but I
don't know if you want to --
          The Court:  No.  No.  Not today.
          Mr. Coppolino:  Okay.
          The Court:  Okay.  Finished?
          You are finished; right?
          Ms. Cohn:  Evidently.
          The Court:  You are.  Okay.
          Thank you.
          Ms. Cohn:  Thank you.
          The Court:  You're back here in two weeks?
          This is not on the record.
          (off-the-record discussion.)

          (whereupon these proceedings concluded at 1:45 P.m.)

   carl R. pline    official reporter   U.S. district Court

                    Certificate Of Reporter

          I, carl R. pline, official reporter for the United
states district Court, northern district of California, 450
golden Gate avenue, San Francisco, California  94102, do hereby
certify that the foregoing transcript, pages numbered 1 through
79, constitutes a true, full and correct transcript of my
shorthand notes taken as such official reporter of the
proceedings hereinbefore entitled, and reduced to typewriting
to the best of my ability.

                              Carl R. Pline, Csr
                             Official Court Reporter

   carl R. pline    official reporter   U.S. district Court