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Bernstein legal team "Response to Petition for Rehearing and Rehearing En Banc"  (July 20, 1999)

Source: e-mail version of original document.

See Bernstein files: http://www.eff.org/bernstein
See the Ninth Circuit decision: http://www.eff.org/bernstein/Legal/19990506_circuit_decision.html

NO. 97-16686





DANIEL J. BERNSTEIN Plaintiff-Appellee,


U.S. DEPARTMENT OF COMMERCE, et al. Defendants-Appellants






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I. The Encryption Export Controls Are An Unconstitutional Prior Restraint Subject To Facial Challenge 3
A. Publishing Encryption Source Code Is Expressive Activity 4
B. The Scheme Is Not a Law of General Application Immune from Facial Attack 6
II. Judicial Review Of the Government's Licensing Decisions Is Appropriate. 12
III. The Court Should Not Rewrite The Regulations. 13


Cases Page
American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985) 14
Bernstein v. U.S. Dept. of State, 922 F.Supp. 1426 (N.D. Cal. 1996) 11
Bernstein v. U.S. Dept. of State, 945 F.Supp. 1279 (N.D. Cal. 1996) 12
Board of Trustees of Leland Stanford Jr. University v. Sullivan, 773 F. Supp. 472 (D.D.C. 1991) 4
City of Chicago v. Morales, 119 S.Ct. 1849 (1999) 9
City of Ladue v. Gilleo, 512 U.S. 43 (1994) 8
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) 2, 9, 10, 15
Florida Star v. B.J.F., 491 U.S. 524 (1989) 12
Freedman v. Maryland, 380 U.S. 51 (1965) 3, 13
Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992) 3, 6, 10
Gaudiya Vaishnava Society v. City and County of San Francisco 952 F.2d 1059 (9th Cir. 1990) 5, 9
Grayned v. City of Rockford, 408 U.S. 104 (1972) 14
Greater New Orleans Broadcaster's Assn.. v. FCC, 119 S.Ct. 1923 (1999) 12
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) 6
Jones Intercable v. City of Chula Vista, 80 F.3d 320 (9th Cir. 1996) 9
Los Angeles County Bar Assn. v. Eu, 979 F.2d 697 (9th Cir. 1992) 13
Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575 (1983) 8
New York Times Co. v. United States, 403 U.S. 713 (1971) 2
One World, One Family Now v. City, County, Honolulu 76 F.3d 1009 (9th Cir. 1996) 3
Regan v. Time, Inc., 468 U.S. 641 (1984) 13
Reno v. ACLU, 117 S.Ct. 2239 (1997) 11, 12, 15
Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996) 9
Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) 5
Taucher v. Born No. CIV A 97-1711 RMV (D.D.C. June 21, 1999) 3
United States v. U.S. District Court for the Cent. Dist of California, Los Angeles, 858 F.2d 534 (9th Cir. 1988) 4
Regulations and Other Materials
15 C.F.R. Sect. 732.2 (b) 7
15 C.F.R. Sect. 732.2 (d) 7
15 C.F.R. Sect. 734.2(b)(9)(ii) 14
15 C.F.R. Sect. 734.3(b)(3) 7, 14
15 C.F.R. Sect. 734.7-10 7
15 C.F.R. Supp. to Sect. 734 14
15 C.F.R. Sect. 742.15(b)(i) 14
15 C.F.R. Sect. 744.9(a) 7
15 C.F.R. Sect. 768.1(b) 7
15 C.F.R. Sect. 772 14
61 Fed.Reg. 68, 575 (1996) 11
National Research Council, Cryptography's Role in Securing the Information Society (1996) 11
Walker, Leslie, "The Web Prepares for Oral Exams," Washington Post, page E01 (May 6, 1999) 5


       In seeking rehearing of the panel decision, Appellants present no intervening case authority, no claim of inter-circuit conflict and no claim that the panel decision overruled an established precedent or overlooked a key legal or factual issue. They cannot.

       The panel majority correctly applied well-settled rules concerning broadly discretionary licensing schemes to a new factual setting. The panel majority declared unconstitutional export regulations that require, among other things, that all persons seek and obtain a government license before communicating encryption source code in electronic form in the following ways: 1) publishing it in an electronic scientific journal or on the World Wide Web; 2) presenting it at a conference abroad or to an Internet newsgroup; and 3) communicating it to an overseas colleague (hereinafter, the encryption regulations are referred to as "the Scheme"). If the same source code is communicated or published on paper, no license is needed.

       The key legal question raised by Appellants on rehearing is whether publication and communication of encryption source code in electronic form is sufficiently "expressive" to fall under the well-established prior restraint doctrine. This question is not nearly as "extraordinary" as the Appellants now suggest. Pet. Br. at 1. More than 20 years ago, the Justice Department's Office of Legal Counsel found that the "requirement of a license as a prerequisite to 'exports' of cryptographic information

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clearly raises First Amendment questions of prior restraint." (1)   In this case, the panel majority considered the same question under the current export controls, and correctly concluded that, because cryptographers ordinarily communicate cryptographic information in source code form, such source code "must be viewed as expressive for First Amendment purposes, and thus is entitled to the protections of the prior restraint doctrine." Op. 4235. Accordingly, it held that those subject to the licensing scheme may bring a facial challenge. See e.g. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 756-757 (1988).

       In seeking rehearing, the government mischaracterizes the panel decision, and asserts that the panel has given its "imprimatur" to the "unrestricted export of encryption products." Pet. Br. 9. To the contrary, the panel majority was quite clear that Appellants, "even if barred from imposing prepublication licensing on encryption source code," might regulate other encryption items. Op. 4245.(2)    The panel simply declined to "engage in line by line revisions" or to "redefine terms within the

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regulations." Id. The panel majority's decision present no basis for rehearing or rehearing en banc. The Petition should be denied.


I. The Panel Correctly Held That Encryption Export Controls Are An Unconstitutional Prior Restraint Subject To Facial Challenge.

        After a full review of the record in this case, the panel found that "the challenged regulations allow the government to restrain speech indefinitely with no clear criteria for review . . .[and so ] operate as a prior restraint on speech." Op. 4241. (3)   Because the Scheme lacks both "narrow, objective and definite standards" and the procedural safeguards of Freedman v. Maryland, 380 U.S. 51 (1965), it grants unbridled discretion to the licensing agencies. It is therefore subject to facial challenge because "every application creates an impermissible risk of suppression of ideas." Forsyth County v. The Nationalist Movement, 505 U.S. 123, 129-31 (1992). (4)  

       Appellants, however, seek rehearing by alleging that "exporting" encryption software in source code form is not "expression or conduct commonly associated with expression" (Pet. Br. 10), and that the Scheme is a law of "general application" that

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poses little threat of censorship risks. Id. Neither argument has merit.

       A. Publishing Encryption Source Code Is Expressive Activity.

       The panel majority found that encryption source code is protected by the First Amendment because "cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs . . . to facilitate the precise and rigorous expression of complex scientific ideas." Op. 4234. Such protection is not diminished by the fact that source code is a technical language that requires some training to be understood. (5)   The panel majority noted examples including "a judicial thinker" and an economist who would be similarly protected notwithstanding their use of formulas and mathematical notations to communicate their ideas. Op. 4234 n.13, 4235.

       Neither the dissent nor the government actually disputes the expressive nature of source code. The dissent acknowledges that when Bernstein uses source code to discuss or teach cryptology, his "source code serves to express scientific methods and ideas." Op. 4247 (Nelson, J., dissenting). Appellants similarly admit that "[e]ncryption

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source code can be written and understood by computer scientists and mathematicians who are trained in the particular programming language." Pet. Br. 4. Appellants, however, assert that they can employ a pre-publication licensing scheme because, in addition to being expressive, source code can also serve "a wholly non-expressive purpose of controlling [a] computer's operation." Id. at 10.

       The panel majority directly addressed, and rejected, Appellants' claim that the "functionality" of source code reduces the extent to which it is constitutionally
protected. (6)   First, it rejected the argument that "even one drop of 'direct functionality' overwhelms any constitutional protections that expression might otherwise enjoy."
Op. 4236.(7)   Second, it found that "the distinguishing feature of source code is that it is

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meant to be read and understood by humans, and that it cannot be used to control directly the functioning of a computer" Op. 4235 (emphasis in original). Moreover, by focusing on the "functionality" of source code, Appellants confuse a speaker's publication of source code, which they regulate, with its use, which they do not.

       The government attempts to downplay the inherently expressive nature of source code by contrasting the electronic publication of encryption software by academic speakers with "activities such as holding parades." Pet. Br. 10. Yet this argument proves too much. In Hurley, the Supreme Court held that parading is speaking because paraders intend to communicate by walking. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 570. By the government's logic, however, the First Amendment status of parading would depend on how much walking in general is "undertaken for expressive purposes." Since only a small fraction of all walking is "parading," the government's position here would permit the use of a discretionary licensing scheme aimed at walking, including parading, on the theory that walking in general is not "expression or conduct commonly associated with expression." This, quite obviously, is not the law. E.g. Forsyth County, 505 U.S. at 129-30.

       B. The Scheme Is Not a Law of General Application Immune from Facial Attack.

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       Appellants' claim that the Scheme is a "law[] of general application that [is] not aimed at conduct commonly associated with expression" inaccurately portrays the export controls and fundamentally misstates the law.

       The government's claim that the Scheme is simply "part and parcel of its general controls on encryption products," Pet. Br. 10, conveniently overlooks how the Scheme targets expression. Appellants portray the Scheme as treating all software "products" alike, equating software and hardware because both are "functional." Yet under the Export Administration Regulations (EAR), non-encryption software is not treated the same as hardware, even though both are "functional." Non-encryption software that is "educational," or that results from "fundamental research" or that is to be placed in the "public domain," is expressly excluded from licensing under the EAR. (8)   In addition, unlike the rest of the EAR, the Scheme requires a license prior to providing "technical assistance" concerning cryptography. (9)   Thus, compared with the general EAR, the Scheme specifically and intentionally targets scientific expression and publication about cryptography. This differential treatment suggests that the goal of the Scheme "is not

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unrelated to suppression of expression, and such a goal is presumptively unconstitutional." Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 585 (1983); see also City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994)("[e]xemptions... may diminish the credibility of the government's rationale for restricting speech in the first place").

       The government's conclusion that the Scheme is not directed at "expression or conduct commonly associated with expression" is also predicated on a basic misreading of applicable precedent. Contrary to the government's argument here, Lakewood cannot be read as making the "narrow and specific" targeting of expression a prerequisite to a facial challenge to a broadly discretionary licensing scheme. That phrase was used merely to characterize one feature of the specific ordinance at issue in Lakewood, 486 U.S. at 760. Moreover, in Lakewood, the Supreme Court recognized that even if the licensor reaches non-speech as well as speech activity, the absence of express standards makes it difficult for a court "to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavorable, expression." Id. at 758.

        In quoting Lakewood, the government also omits a crucial part of the test. "[L]aws of general application" carry "little danger of censorship" in part because they "do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken." Id. at 760-61. Under the Scheme, this is precisely

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what takes place: the agency reads the source code to determine whether a license is required and whether to grant it. Those decisions are obviously based upon the "words about to be spoken."

       The other cases cited by the Appellants are easily distinguished. Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996), did not involve a licensing scheme. Jones Intercable v. City of Chula Vista, 80 F.3d 320 (9th Cir. 1996), did involve a licensing scheme, but the claimant did not allege that the law afforded officials unbridled discretion over speech activity. Contrary to the government's contentions, whenever the Ninth Circuit has considered a discretionary speech licensing scheme, it has applied prior restraint law. See, e.g., Gaudiya Vaishnava, 952 F.2d at 1065.

       Even outside of the First Amendment context, highly discretionary criminal laws - vague laws - are subject to facial attack because they fail to guide law enforcement. In City of Chicago v. Morales, 119 S.Ct. 1849 (1999), for example, the Supreme Court invalidated a Chicago gang loitering ordinance without substantial impact on First Amendment activity for lack of "minimal guidelines to govern law enforcement." Id. at 1861.

       Further, Lakewood presumes that if charges of speech-related misuse are made against a law of general applicability, "the general application of the statute to areas unrelated to expression will provide the courts a yardstick with which to measure the licensor's occasional speech-related decision. Lakewood, 486 U.S. at 761. But the

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Scheme fails here as well. As the government itself notes, the vast majority of applications of the Scheme are not subject to judicial review. Pet. Br. 12. The government has no duty to report publicly its licensing decisions under the Scheme. Thus, the Scheme provides the Court with no yardstick by which to judge its speech applications.

       The government's erroneous factual and legal arguments undermine its claim that the Scheme is "too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse." Pet. Br. 9-11, quoting Lakewood, 486 U.S. at 761.(10)   Pet. Br. 10-11. As the panel majority explained, "the challenged EAR regulations explicitly apply to expression and place scientific expression under the censor's eye on a regular basis." Op. 4237.

       In addition, the record in this case demonstrates that the Scheme "contains more than the possibility of censorship through uncontrolled discretion." Forsyth County, 505 U.S. at 133. The panel noted Bernstein's difficulties with the licensing agency (11)

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and concluded that his experience was "by no means unique." Op. 4223-4224 (citing examples). In fact, the record is replete with examples of the government exercising its discretion unfairly and of the chilling effects created by the Scheme. The American Association for the Advancement of Science has warned that the Scheme (12)   "threaten[s] to undermine the essential features of scientific freedom and open exchange of information that are generally acknowledged as critical to innovation in science and technology." AER 517.

       Nor is the government's argument strengthened by its acknowledgment that source code "reproduced in a printed medium such as a book or journal... may be exported without a license" while the same source code in electronic form is subject to licensing. Pet. Br. 12. To begin with, the government has reserved for itself the discretion to extend the controls to printed material. See 61 Fed. Reg. 68, 575 (1996). In any event, this argument ignores the Supreme Court's rejection of a similar claim in Reno v. ACLU that the government can "effectively censor[] discourse on many of the

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Internet's modalities" so long as it permitted speakers a "reasonable opportunity" to engage in speech in other areas. (13)   Finally, if encryption source code may be published on paper without a license, this raises significant questions about the government=s purported justifications for the Scheme. See Florida Star v. B.J.F., 491 U.S. 524, 535 (1989) (no public interest served by restricting further publication of already public information). (14)  

II. Judicial Review Of the Government's Licensing Decisions Is Appropriate.

       In an effort to resurrect an argument rejected by the District Court and never raised before the Panel, Appellants contend that: "[j]udicial review is . . . a fundamentally unworkable solution. . . ." Pet. Br. 13. This backdoor attempt to raise this issue is both procedurally improper and without merit.

       Discretionary decisions about whether to permit or prevent publication and communication necessarily endanger free expression. The need for judicial review is

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nowhere more pronounced than in such a censorship decision. Indeed, imposition of a restraint on expressive activity is constitutionally committed to the judiciary, to the exclusion of the political branches. E.g., Freedman, 380 U.S. at 58 ("because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint"). (15)   Appellants' belated attempt to have this Court disregard the centerpiece of Freedman's procedural protections should be denied.
III. The Court Should Not Rewrite The Regulations.

       The government also seeks rehearing of its ultimate fallback position: if the Court again concludes that the Scheme operates as an unconstitutional prior restraint, Appellants urge, it should nonetheless strive to save the Scheme by rewriting it. That argument fails, for at least three reasons.

       First, although "a court should refrain from invalidating more of a statute than is necessary," its power to do so depends upon whether the "unobjectionable provisions [are] separable from those found to be unconstitutional." Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)(citation omitted)(emphasis added). The term "separable" is crucial: the statute or regulation must in fact contain separable textual

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provisions that can be excised, so that the remaining constitutional provisions may remain intact.

       The severability doctrine permits excision, but never revision. See American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323, 328-33 (7th Cir. 1985). Here, the integrated nature of the regulations do not permit excision. For example, 15 C.F.R. Sect. 772 defines "encryption software" as "computer programs that provide capability of encryption functions or confidentiality of information or information systems"--adding that "[s]uch software includes source code, object code, applications software or system software." Parsing the phrase into its constitutional and unconstitutional components thus requires much more than deleting the phrase "source code" from the statutory framework: the Court must instead substitute its own definition of "encryption software" for that contained in the regulations. (16)

       Second, deleting "source code" from the definition of "encryption software" presents the "twin dangers of a vague law -- lack of notice and arbitrary or discriminatory application [which] may chill the exercise of important constitutional rights." Grayned v. City of Rockford, 408 U.S. 104 (1972). Neither "source code" nor "object code" is defined precisely enough by the Scheme to allow an ordinary person

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to know whether a particular item is regulated as one or the other. Further, as technology continues to progress, the distinctions between the two terms are being eliminated.

       Third, there is no need for the Court to step in and "save" the scheme by rewriting it. Unlike a statute, which normally requires drafting and successful passage by Congress and the signature of the President to become law, Appellants can revise the export control regulations at any time.


       In holding that the Scheme is subject to a facial prior restraint analysis, the panel majority's ruling is consistent with the "well worn path" of procedural prior restraint cases, including Lakewood, the recent Supreme Court decision in Reno v. ACLU, which holds that the Internet is a fully protected medium of expression, and the conclusion of the Department of Justice's own Office of Legal Counsel over 20 years ago. Appellee therefore requests that Appellants' Request for Rehearing and Rehearing En Banc be denied.

Dated:______________               Respectfully submitted,

Professional Corporation
Attorneys for Appellee Daniel J. Bernstein.

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(1)  Appellee's Excerpts of Record 244 (Memorandum of John M. Harmon, Assistant Attorney General, Office of Legal Counsel, to Dr. Frank Press, Science Advisor to the President (May 11, 1978))(hereinafter "AER").

(2)This case is not, as the government indicates, a challenge to the President's exercise of his authority to protect the national security. But even if it could be so construed, the Supreme Court long ago rejected the claim that the Executive could unilaterally impose a prior restraint on expression based only upon a bare assertion of a national security interest. E.g., New York Times Co. v. United States, 403 U.S. 713, 730 (1971) (Stewart, J., joined by White, J., concurring); see also id. at 726-27 (Brennan, J., concurring); id. at 719 (Black, J., and Douglas, J., concurring).

(3)See also Taucher v. Born No. CIV A 977-1711 RMV (D.D.C., June 21, 1999) (computer software available on the Internet treated as fully protected speech for purposes of prior restraint analysis).

(4)This Circuit has characterized the holding of such discretionary licensing schemes facially invalid as a "well worn path." One World, One Family Now v. City, County, Honolulu, 76 F.3d 1009 (9th Cir. 1996).

(5)Although technical subjects do not have mass audience appeal, "scientific expression and debate" is part of the "heartland" of the First Amendment, regardless of whether most people might understand the speech in question. United States v. U.S. District Court for the Cent. Dist. of California, Los Angeles, 858 F.2d 534, 542 (9th Cir. 1988). "It is . . . settled . . . that the First Amendment protects scientific expression and debate just as it protects political and artistic expression." Board of Trustees of Leland Stanford Jr. University v. Sullivan, 773 F. Supp. 472, 474 (D.D.C. 1991).

(6) Even where the issues of speech and conduct are inseparable, courts have rejected attempts to uphold licensing schemes despite the argument that the license applied to "a whole range of easily identifiable and constitutionally proscribable conduct." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965 (1984) (citation omitted). See also Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059, 1065 (9th Cir. 1990), cert. denied, 502 U.S. 914 (1992) (licensing scheme is unconstitutional where speech and conduct are "intertwined").

(7) The panel also noted the broader danger in the government's distinction between "functional" source code and "nonfunctional" information: "[T]he distinction urged on us by the government would prove too much in this era of rapidly evolving computer capabilities. The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its 'functional' aspects." Op. 4236. See Leslie Walker, "The Web Prepares for Oral Exams," Washington Post, page E01 (May 6, 1999) (describing the development of Internet browsers that operate by spoken commands).

(8) 15 C.F.R. Sects. 734.3(b)(3); 734.7-10; 768.1(b).

(9) 15 C.F.R. Sect. 744.9(a). The regulations allow teaching about cryptography in the classroom, but all other forms of scientific discourse that could "assist" a foreign person in development of encryption capabilities require a license. Additionally -- and inexplicably -- exclusions for items already available from foreign sources and which have de minimis U.S. content are denied for encryption items. 15 C.F.R. '' 732.2(b), (d), 768.1(b).

(10) The government also argues that the Scheme's stated purpose is to control encryption source code for its "functional capacity," not for "any possible informational value." Pet. Br. 11-12. Both the panel majority and the dissent agreed, however, that "the purpose of the regulations is irrelevant to prior restraint analysis." Op. 4237 n. 17 (emphasis in original).

(11) The licensing agency first told Professor Bernstein that, not only was his source code controlled, but that his scientific paper and other explanatory materials were also controlled, and only withdrew the latter assertion after suit was filed. See Bernstein v. U.S. Dept. of State, 922 F.Supp. 1426, 1430, 1434 and 1437, n. 19 (N.D. Cal. 1996). The agency also told Prof. Bernstein that no license would be granted and even warned that he could be prosecuted for the simple act of placing his materials into a public library. AER 11-12. It then failed entirely to respond to his administrative appeal. Bernstein, 922 F.Supp. at 1430.

(12) Op. 4237; AER 83; 84-102; 141-43; 175-6; 184-5; 187; 331-2; 334-6; 192-5; 500-6. See also National Research Council, Cryptography's Role in Securing the Information Society (1996) 4-14 to 4-18, 4-30 to 4-33 and 4-47. As another example, Mr. Lawrence Miller reports how the agency's refusal to clarify whether the Scheme applied to his graduate computer security project led him to take an incomplete grade and to hesitate prior to doing additional work in cryptography. AER 144-154.

(13) 117 S. Ct. at 2348. The Court found this argument to be "equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books," Reno, 117 S. Ct. at 2348-49.

(14) See also Bernstein, 945 F. Supp. at 1279 n. 10 ("The NRC Report commented on the general dismay with which the academic cryptography community greeted [the Karn v. U.S. Dept. of State, 925 F.Supp. 1 (D.D.C. 1996] decision, repeating their quip: 'They think terrorists can't type?'"). See also Greater New Orleans Broadcaster's Assn. v. FCC, 119 S.Ct. 1923, 1934 (1999) (restrictions held unconstitutional where the "regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all").

(15) Moreover, [s]o long as the nature of the inquiry is familiar to the courts, the fact that standards needed to resolve a claim have not yet been developed does not make the question a non-justiciable political one. Los Angeles County Bar Assn. v. Eu, 979 F.2d 697, 702 (9th Cir. 1992)(citation omitted) (emphasis added).

(16) This is by no means the only provision that requires revision under Appellants' theory. In addition, 15 C.F.R. '' 734.2(b)(9)(ii), 742.15(b)(i), 734.3(b)(3), several of the Supplements to Part 734, as well as others, would have to be rewritten.

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