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 Attorneys for Plaintiff Daniel J. Bernstein FRANK W. HUNGER Assistant Attorney General MICHAEL J. YAMAGUCHI United States Attorney MARY BETH UITTI Assistant United States Attorney 450 Golden Gate Avenue San Francisco, CA 94102 Telephone: (415) 436-7198 VINCENT M. GARVEY ANTHONY J. COPPOLINO Department of Justice Civil Division, Room 1084 901 E Street, N.W. Washington, DC 20530 Telephone: (202) 514-4782 Attorneys For Defendants United States Department of State, et al. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN ) ) C 95-0582 MHP Plaintiff, ) ) JOINT STATEMENT OF ) UNDISPUTED FACTS v. ) ) ) UNITED STATES DEPARTMENT OF ) STATE et al., ) ) Defendants. ) Date: September 20, 1996 ) Time: 12:00 p.m. ) Judge: Hon. Marilyn Hall Patel Pursuant to the direction of the Court, the parties hereby submit the following Joint Statement Of Undisputed Facts in conjunction with Plaintiff's motion for summary adjudication and partial summary judgment, and Defendants' motion for summary judgment. This joint statement contains solely facts which are undisputed for purposes of the pending motions only. The parties reserve the right to argue whether certain facts are material to the legal issues before the Court. The Court is also referred to the parties' respective pleadings, declarations or affidavits, citations to authority, and other evidence that the parties have submitted for the record. JOINT STATEMENT OF UNDISPUTED FACTS I. Relevant Terminology * 'Encryption' is the process by which the original, "human-readable" text of a message or document (also known as "plaintext") is transformed into a text that the sender and recipient intend not to be understandable by third parties (known as "ciphertext"). * 'Decryption' is the reverse process of transforming the ciphertext message or document into the original plaintext. * "Cryptography" is the science of encryption and decryption. In general, cryptography is used to prevent the unauthorized interception, viewing, reading, tampering, and forging of messages. Most modern cryptography uses a 'key' -- specific information (analogous to a password) that is necessary to decrypt ciphertext. Whether an encrypted message is actually "secure" depends on, inter alia, the relative "strength" of the encryption as well as the security of the key. * Cryptanalysis' refers to the science and activity of "breaking" a ciphertext message without the key (i.e. determining the content of encrypted communications). Cryptanalysis can also refer to the technique of testing whether the encryption is effective. * Information sent via computer is, in the absence of cryptography, unsecure in transmission and may be viewed by those other than the intended recipient. With cryptographic software, messages or text can be secured with the intention that whatever is sent is inaccessible to anyone except the intended recipient (who possesses the key). * A cryptographic "algorithm" is a set of instructions, usually made up of mathematical functions or equations, that can be applied to encrypt plaintext into ciphertext. Cryptographic algorithms, like other algorithms, can be implemented on a computer through the use of computer programming language and, in that form, are computer programs or software. Cryptographic "source code" is a computer program written in a computer language such as the "C" language that can be used to encrypt and decrypt information. * A person can encrypt a message or document on a computer by converting the cryptographic source code into "object code" using another computer program called a "compiler." Object code may be conveniently thought of as a series of "ones" and "zeros" that may be directly executed by a computer. Compiling software performs the compiling function and is commonly available at retail computer outlets. With such software loaded, source code can be compiled into object code with a press of a button on a computer. * Cryptographic source code -- cryptographic algorithms in a computer programming language such as "C" -- can be read and evaluated by computer scientists, mathematicians, programmers and others who possess the training or ability to understand such code. * Articles and papers containing and discussing cryptographic algorithms, source code, and theories have been published in scientific journals for many years for peer review and evaluation. II. Plaintiff's CJ Requests * Plaintiff developed an algorithm called "Snuffle" for encrypting and decrypting communications. He wrote a description of the Snuffle algorithm (set forth at DJBCJF-2), Tab D1 to the Complaint. Plaintiff also developed Snuffle 5.0, which includes Snuffle.c and Unsnuffle.c (DJBCJF-3 and 4)(referred to hereafter as "Snuffle 5.0). * Snuffle 5.0 software is cryptographic source code written in the "C" computer language. If combined with a hash function, compiled and run on a computer, Snuffle 5.0 can direct the computer to transform information into ciphertext and back into plaintext again, including by encrypting interactive text exchange between two people who have exchanged keys. * Plaintiff seeks, inter alia, to post Snuffle 5.0, his description of Snuffle (set forth at DJBCJF-2) and instructions on how a person may program and use a computer to encrypt using Snuffle (DJBCJF-5 and 6) on an Internet newsgroup called sci.crypt. Defendants' position regarding these items is set forth at Tabs 21 and 24 of the Lowell Declaration. * DJBCJF-2 through 6 were developed without government funds and are not classified. * The Internet is an international telecommunications computer network through which computer users are able to distribute and access information, including academic and scientific information. See also ACLU v. Reno, 929 F.Supp. 824, 831-834, 836 (E.D. Pa., 1996) (Preliminary Injunction Findings of Fact paras. 1, 3-5, 13, 25, 33-35). Computer software can also be distributed electronically over the Internet. One common method of distribution through the Internet are online newsgroups like sci.crypt. See ACLU, 929 F.Supp. at 834 (paras. 25-26). * Plaintiff submitted a letter dated June 30, 1992, to the State Department. Bernstein Decl. Exhibit A; Lowell Dec. Tab 3. * By letter dated August 21, 1992, the State Department responded. Bernstein Decl. Exhibit B; Lowell Decl. Tab 4. * Plaintiff submitted another letter to the State Department dated March 19, 1993. Bernstein Decl. Exhibit C; Lowell Decl. Tab 5. * On or about March 26, 1993, Plaintiff contacted Charles Ray by telephone. Bernstein Decl. Exhibit D. * Plaintiff submitted a letter to the State Department dated April 2, 1993. Bernstein Decl. Exhibit E, Lowell Decl. Tab 6. * By letters dated May 25, 1993 and May 27, 1993, the State Department responded to Plaintiff. Lowell Decl. Tabs 9 and 10. * Plaintiff submitted a letter to the State Department dated June 30, 1993. Lowell Decl. Tab 12. * On or about July 7, 1993, the State Department responded to Plaintiff's letter dated June 30, 1993. Bernstein Decl. Exhibit F; Lowell Decl. Tab 13. * Plaintiff submitted five letters to the State Department dated July 15, 1993. Bernstein Decl. Exhibit G; Lowell Decl, Tab 16. * By letter dated July 19, 1993, the State Department responded to a telephone request by Plaintiff. Lowell Decl. Tab 15. * The State Department sent a letter to Plaintiff dated July 26, 1993, concerning his five letters of July 15, 1993. Lowell Decl. Tab 17. * Plaintiff submitted a letter to the State Department dated September 20, 1993. Lowell Decl. Tab 14. * By letter dated October 5, 1993, Defendants responded to Plaintiff's letters of July 15, 1993. Bernstein Decl. Exhibit I; Lowell Decl. Tab 18. * Exhibit C to the Complaint (and Exhibit J to Bernstein Decl.) is a letter dated September 22, 1993, from Plaintiff addressed to Ambassador Michael Newlin, then-Acting Deputy Assistant Secretary in the Bureau of Political-Military Affairs, appealing the State Department's first commodity jurisdiction determination (CJ-191-92). The State Department has not located any record of this appeal having been received. * Plaintiff did not appeal the State Department's determination contained in its letter to him of October 5, 1993. * On June 29, 1995, the State Department sent a letter to Plaintiff concerning its prior determinations. Bernstein Decl. Exhibit K; Lowell Decl. Tab 24. * By letters dated May 3, 1996 and July 3, 1996, Plaintiff, through counsel, again inquired concerning the State Department's letter of June 29, 1995, and concerning Plaintiff's plans to teach an upcoming undergraduate-level course on cryptography in January, 1997. Lowell Decl. Tabs 22 and 23. The State Department responded by letter dated July 25, 1996. Lowell Declaration, Tab 24. * Plaintiff did not apply for an export license. Date:__________________________ Date:__________________________ For the Defendants For the Plaintiff VINCENT M. GARVEY CINDY A. COHN, ESQ.; SBN 145997 ANTHONY J. COPPOLINO McGLASHAN & SARRAIL Department of Justice Professional Corporation Civil Division, Room 1084 177 Bovet Road, 6th Floor 901 E Street, N.W. San Mateo, CA 94402 Washington, DC 20530 Telephone: (415) 341-2585 Telephone: (202) 514-4782 Facsimile: (415) 341-1395