CINDY A. COHN, ESQ.; SBN 145997 McGLASHAN & SARRAIL Professional Corporation 177 Bovet Road, Sixth Floor San Mateo, CA 94402 Tel: (415) 341-2585 Fax: (415) 341-1395 LEE TIEN, ESQ.; SBN 148216 1452 Curtis Street Berkeley, CA 94702 Tel: (510) 525-0817 ROBERT CORN-REVERE, ESQ. JEREMEY B. MILLER, ESQ. JULIA F. KOGAN, ESQ. Hogan & Hartson, L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20008 Tel: (202) 637-5000 Attorneys for Plaintiff Daniel J. Bernstein IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN ) ) C 95-00582 MHP Plaintiff, ) ) DECLARATION OF v. ) ROBERT V. PRIOR ) ) UNITED STATES DEPARTMENT OF ) STATE et al., ) ) Defendants. ) ) ________________________________________) I, ROBERT V. PRIOR, hereby declare: 1. I am an editor in the Computer Science and Artificial Intelligence department of The MIT Press, located at 55 Hayward Street, Cambridge, MA 02142. The facts contained herein are known to me of my own personal knowledge and, if called upon to testify thereto, I could and would competently do so. 2. This Declaration is a statement of the facts and dates with regard to the publication of Philip R. Zimmermann's book, PGP: Source Code and Internals, by The MIT Press. 3. In mid-1994, I was introduced to Phil Zimmermann at a computer conference by a mutual acquaintance. Phil and I discussed the possibility of his publishing a book with The MIT Press and shortly thereafter we formulated plans for two books - both of which we felt would be both important additions to the rather skimpy existing library of books on cryptographic software. 4. The MIT Press and the administration of the Massachusetts Institute of Technology were fully aware of the controversy surrounding PGP and Mr. Zimmermann and made the decision to publish these books for both sound business reasons (later confirmed by sales of the books) and in a desire to see non-classified and pedagogically important information be made widely available. 5. A freelance designer was hired, a normal business practice for electronic manuscripts, and in due course a fully-formatted electronic manuscript of the Source Code book was delivered to MIT Press. A set of laser proofs of the book was produced at the earliest possible date in the publication process. 6. On January 24, 1995, the laser proofs were sent to the Office of Defense Trade Controls at the U.S. Dept. of State. A copy of the letter that accompanied the page proofs is attached hereto as Exhibit "A." Briefly, the letter stated our belief that the was not covered on the U.S. Munitions List and thus would not be subject to export control under ITAR. 7. On February 24th, I was able to confirm that a number had been assigned to our CJ Request (CJ 052-95) and that copies of the page proofs of the book had been sent to the Departments of Defense and Commerce for review and that the review should take 20-30 days. 8. I called my contact at the State Dept., Mr. Sam Capino, approximately every week or two to inquire as to the status of the CJ Request and repeatedly reinforced that the book was due to be published in May and that it was our plan to export it without restriction as part of our normal book distribution process. 9. On April 26th, at the suggestion of Mr. Capino, I wrote to Dr. Martha C. Harris of the State Departments' Bureau of Political Military Affairs, requesting that our request be given expedited handling. Our request is attached hereto as Exhibit "B." Despite this, we received no response from the Government prior to our original May publishing date. 10. On June 6th, over four months after we sent our CJ Request, the book was published and shipped from our warehouse to all customers who had ordered copies in advance of publication. This included our own warehouse in the U.K., bookstores with whom we normally do business throughout Europe and in countries such as Israel, Australia, and Japan, and to individuals from many countries who had ordered copies in advance of publication. 11. On that same day, I was told by Mr. Capino that he had received a favorable review from the Department of Commerce. He told me that Commerce had determined: "this book is generally available to the public. Commerce should have the commodity jurisdiction since this is not specifically written for military application." 12. He then told me that he had not yet heard from the Department of Defense. I was told that the Department of Defense had given the book to the NSA for review and that as of June 6th, "NSA's recommendation is with their general counsel's office for approval." Mr. Capino also told me informally that NSA's recommendation was that the book should be controlled under the ITAR. When I asked him to send me receive confirmation of NSA's recommendation in writing, he said he was unable to do so. 13. The tale basically ends here. We never received any response to our letter, either to confirm that our interpretation of the ITAR was correct or to inform us that it was not correct. We decided to publish the book in spite of the fact that we had not received a response from the Government and despite the fact that we had been told informally that NSA recommended that the book be controlled under the ITAR. 14. The book was published, sold out two printings, and has since gone out of print. There has been no word from any branch of the U.S. Government regarding the publication nor has there been any attempt to stop MIT Press from distributing the book. I declare under penalty of perjury that the foregoing is true and correct and that this Declaration was executed at San Mateo, California. Dated: ROBERT V. PRIOR