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 Attorney for Plaintiff Daniel J. Bernstein FRANK W. HUNGER Assistant Attorney General MICHAEL J. YAMAGUCHI United States Attorney MARY BETH UITTI (Cal. SBN 64452) Assistant United States Attorney VINCENT M. GARVEY ANTHONY J. COPPOLINO Department of Justice Civil Division, Room 1084 901 E Street, N.W. Washington, D.C. 20530 Tel. (Voice): (202) 514-4782 (Fax) : (202) 616-8470 or 616-8460 Attorneys for the Defendants UNITED STATES DEPARTMENT OF STATE et al. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO HEADQUARTERS DANIEL J. BERNSTEIN, ) C 95-0582 MHP ) Plaintiff, ) ) v. ) STIPULATION FOR TEACHING ) DURING THE SPRING 1997 UNITED STATES DEPARTMENT OF ) SEMESTER STATE, et. al., ) ) Defendants. ) ) ________________________________) This agreement is made between the Defendant Secretary of Commerce (who is now the authorized licensing official in this area) (through counsel or his designee) (hereafter "the Secretary") and the Plaintiff (both hereafter referred to as "the parties") in lieu of Plaintiff seeking a Temporary Restraining Order or Preliminary Injunction with regard to his teaching activities for the Spring 1997 cryptography course at the University of Illinois at Chicago (hereafter "UIC") called "Topics in Computer Science: Cryptography," Course Number MCS 494) (hereafter the "Spring 1997 course"). This stipulation concerns solely plaintiff's teaching activities for the spring 1997 course, and is effective until the conclusion of plaintiff's Spring 1997 course on May 10, 1997. 1. The Secretary hereby agrees that no license or other authorization would be required, and, accordingly, the Secretary would not initiate administrative enforcement proceedings for a civil penalty nor seek the imposition of criminal sanctions, during the Spring 1997 semester or thereafter, based on: (a) Plaintiff engaging in classroom lecture and discussion in his Spring 1997 course about encryption items, including instruction about theory and use of encryption items, or for providing lecture notes and related teaching materials to both U.S. and foreign students for purposes of instruction in the Spring 1997 course, including (subject to para. 1(b) below) providing or making available encryption software (including source code) to his students in this course, except that any encryption software (including source code) provided or made available to students in the Spring 1997 course remains subject to the "EI" controls with respect to its export from the United States as provided under the EAR; and (b) Plaintiff's creation of a "Controlled Class Site" on the UIC computer network (hereafter "site") as one means of providing or making available encryption software (including source code) to students in the Spring 1997 course, which provides for the following features: (1) The Controlled Class Site shall reject Internet addresses outside 128.248, the IP address for machines on the University of Illinois at Chicago computer network; and (2) Access to the site, by means of a UIC computer as described in (1) above, through an initial page or screen containing: (i) a notice that the site includes cryptographic software subject to export controls under the Export Administration Regulations, and that anyone obtaining such software from the site cannot export the software without a license; and (ii) a mechanism enabling those who access the initial page or screen to affirmatively acknowledge the foregoing notice before proceeding. It is the parties' understanding that all computers that are part of the UIC computer network are located in the United States and that the network does not provide for a host link to a computer outside of the United States. The provisions of this paragraph are agreed to by the Secretary for the sole purpose of temporarily addressing the circumstances involving the plaintiff's Spring 1997 course, and do not constitute a binding construction or application of governing regulatory requirements, including under 15 C.F.R. 734.2(b)(9)(ii), in connection with any other matter. 2. The parties agree that if Plaintiff takes any other action that the Secretary determines is contrary to the Export Administration Regulations, the Secretary is not precluded from initiating administrative enforcement proceedings for a civil penalty nor from seeking the imposition of criminal sanctions. 3. This agreement is entered into between the Secretary of Commerce (through counsel or other designee) and Plaintiff solely with respect to the Plaintiff in this action, Daniel J. Bernstein, and has no effect or precedent as to any other individual or entity. 4. Reservation of Positions: (a) Plaintiff: Based on the foregoing provisions, plaintiff agrees that he will not separately seek a Temporary Restraining Order or Preliminary Injunction with regard to his teaching activities for the Spring 1997 course. Plaintiff expressly retains the right to raise the issue of the impact of the export controls on the teaching activities of plaintiff and others similarly situated in the context of his wider challenge to the facial constitutionality of the export controls. By this agreement, the Plaintiff does not concede that the terms herein are lawful as a matter of statutory or constitutional law, and specifically preserves all claims, positions, and arguments he has or may raise in this action. (b) Defendants: By this agreement, the Secretary of Commerce, and any other named defendants who may remain in this case, do not concede that the application of any export regulation under the EAR to encryption items, including software and technology, are unlawful as a matter of statutory or constitutional law, nor waive any defense, position, or argument that has been or may be raised in this case. Defendants retain all substantive, jurisdictional, and procedural defenses to any claims that have been or may be raised by plaintiff in this action. In addition, the Secretary of Commerce and any other defendants do not by this agreement concede or acknowledge that there is any legal basis for the entry of any judgment or injunction by a court, including a temporary restraining order, preliminary injunction, permanent injunction, or declaratory judgment enjoining or declaring invalid any aspect or provision of the Export Administration Act, Export Administration Regulations, the International Emergency Economic Powers Act, Arms Export Control Act, the International Traffic in Arms Regulations, or any other law or regulation, including those provisions referenced herein. 5. This Stipulation contains the entire agreement between the parties hereto with regard solely to Plaintiff's teaching activities during the Spring 1997 course. It is executed without reliance upon any additional representation of either party. For Defendants: For Plaintiffs: DATE: (written) January 10, 1997 DATE: (written) January 13, 1997 FRANK W. HUNGER McGLASHAN & SARRAIL Assistant Attorney General Professional Corporation MICHAEL J. YAMAGUCHI United States Attorney (signed) Anthony J. Coppolino (signed) Cindy A. Cohn VINCENT M. GARVEY CINDY A. COHN ANTHONY J. COPPOLINO McGLASHAN & SARRAIL Department of Justice Professional Corporation Civil Division, Room 1084 177 Bovet Road, Sixth Floor 901 E Street, N.W. San Mateo, CA 94402 Washington, D.C. 20530 ORDER IT IS SO ORDERED: _______________________________ United States District Judge