No. 97-16686
__________________________________________________________
__________________________________________________________

	IN THE UNITED STATES COURT OF APPEALS
		FOR THE NINTH CIRCUIT

		_________________________
		  DANIEL J. BERNSTEIN,
		  Plaintiff-Appellee,

			v.

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

	ON APPEAL FROM THE UNITED STATES DISTRICT COURT
	   FOR THE NORTHERN DISTRICT OF CALIFORNIA
		_______________________

		 BRIEF OF AMICUS CURIAE
	AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE
		_______________________

Thomas S. Leatherbury			Richard D. Marks
Scott Breedlove				John M. Faust
VINSON & ELKINS L.L.P.			VINSON & ELKINS L.L.P.
3700 Trammell Crow Center		1455 Pennsylvania Avenue, N.W.
2001 Ross Avenue			Washington, D.C. 20004-1088
Dallas, Texas 75201-2975		(202) 639-6725
(214) 220-7792

John R. Liebman
Richard S. Berger
TUTTLE & TAYLOR
355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071-3102
(213) 683-0663

		  CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1, the American Association for the Advancement of
Science states that it has a wholly owned subsidiary, AAAS Science
Publications, Inc., a District of Columbia for-profit corporation,
whose address is 1200 New York Avenue, N.W., Washington, D.C. 20005.
AAAS Science Publications, Inc. has a wholly owned for-profit
subsidiary, AAAS Science International, a Delaware for-profit
corporation, whose address is 14 George the Fourth Street, Cambridge,
U.K. CB2 18H. None of these entities has issued shares to the public.

			TABLE OF CONTENTS

									Page


       CORPORATE DISCLOSURE STATEMENT					i
       TABLE OF CONTENTS						ii
       TABLE OF AUTHORITIES						v
       JURISDICTION							1
       STATEMENT OF INTEREST OF AMICUS CURIAE				1
       ISSUES PRESENTED FOR REVIEW					4
       STATEMENT OF THE CASE						5
       SUMMARY OF ARGUMENT						5
       ARGUMENT								8

	     I. The Regulations Violate the First Amendment		8

		   A. Source Code, the Language of Academic Discourse
		   on Cryptography, Is Pure Speech			8

		   B. O'Brien Intermediate Scrutiny Is Inapplicable
		   Because Source Code is Pure Speech, Not Conduct
		   With Expressive Elements				15

		   C. Although Prior Restraints on Encryption Source
		   Code Are Presumptively Invalid, the Regulations at
		   Issue Would Fail Even Under O'Brien			22

			 1.The Asserted Government
			 Interest Cannot Justify Classification
			 of Encryption Source Code			23

			 2.The Asserted Interest in National
			 Security Is So Broad that
			 Wholesale Restrictions on Speech
			 Are Inevitable					32

	     II. The Regulations Violate Equal Protection Applied
	     to the Federal Government Through the Fifth Amendment	33

	     III. The Regulations Violate the Privileges and Immunities
	     Clause as Applied to the Federal Government under the Fifth
	     Amendment by Infringing the Right to Make Use of the Most
	     Effective Commercially Available Means of Communication	39

		   A.The Right of Effective Access to the Prevailing
		   Communications Infrastructure Is a Privilege of
		   American Citizenship					40

		   B. Precedent Limiting the Force of the Fourteenth
		   Amendment's Version of Privileges and Immunities Has
		   No Application to the Right of Effective Communication
		   Asserted Here Against the Federal Government		44

		   C. Access to the Internet is Well Within the Traditional
		   Privilege of Citizen Access to Effective Means of
		   Communication, And Therefore May Not be Abridged by
		   Government Efforts Impeding Internet Security	49

	     IV. The Regulations Violate the Constitutional Right of
	     Privacy.							54

		   A. Mr. Bernstein's Speech Is Critical to the Privacy
		   Needs of Its Potential Recipients.			54

		   B. The Critical Nature of This Censored Speech Is
		   Significant to the Constitutional Analysis.		57

		   C. The Privacy Rights of Recipients Require That the
		   Judgment of the District Court Be Affirmed.		58

       CONCLUSION							62

APPENDIX

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES


JURISDICTION

We adopt the jurisdictional statement in the brief of
Plaintiff-Appellee Bernstein.

STATEMENT OF INTEREST OF AMICUS CURIAE

The American Association for the Advancement of Science ("AAAS" or the
"Association") is a non-profit scientific society that promotes
scientific freedom and open exchange of information in the interest of
advancing human progress in all endeavors, among other objectives.
Nearly 150 years after its founding in 1848, AAAS is the world's
largest general scientific organization. It has nearly 300 affiliate
organizations and counts among its members over 143,000 scientists,
engineers, educators, policy makers, and others interested in science
and technology worldwide. The Association's major peer review journal,
Science magazine, is one of the world's most frequently cited
scientific journals.

The Association's interest in this case stems from its longstanding
commitment to open scientific discourse. America's technological
preeminence is widely attributed to the freedom it traditionally
accords its scientists to communicate -- to engage in such
quintessentially scholarly pursuits as teaching a class, publishing
research, speaking at conferences, and, perhaps most importantly,
exchanging information with peers worldwide. AAAS therefore has built
a consistent record of vigorous opposition to governments' efforts to
restrict the communication of unclassified scientific and technical
information.

In keeping with this commitment, AAAS has become especially concerned
of late about the U.S. Government's attempts to regulate encryption
technology, and the impact that these restrictions are likely to have
on the science of cryptography. As the District Court pointed out with
approval in its opinion, AAAS submitted comments earlier this year
opposing the very regulations at issue in this case. The Association
demonstrated in those comments and elsewhere that the Government's
Regulations prevent some of the world's best scientific minds from
developing the security that an ever-more global information
infrastructure urgently demands. When undue regulation burdens and
even prevents worldwide discourse concerning cryptography, new
encryption methods cannot be tested adequately, workable international
encryption standards cannot be developed, and scientists -- unable to
publish or obtain essential peer review without fear of prosecution --
cannot be persuaded to enter the field of cryptography at all.
AAAS believes that these results are intolerable, especially given the
economic, political, military, and even social importance of
cryptography to the United States and the rest of the world. AAAS
submits this brief as amicus curiae to draw the Court's attention
specifically to the dramatic implications that this case has for free
exchange of information, the mainstay of the international scientific
community that AAAS represents.

Throughout its history, the Association also has championed human
rights. This is an essential complement to AAAS's campaign against the
abridgement of scientific freedoms. Today, AAAS provides technical
assistance to international human rights groups in the design and
development of secure information management systems used for
large-scale human rights data collection and analysis. Because those
systems concentrate politically volatile information in computers,
they place the sources and collectors of the information in grave
danger. Strong cryptography is vital to prevent discovery,
infiltration, and retaliation by hostile regimes.

Because the Regulations at issue in this case would prevent American
scientists from supplying encryption assistance needed for human
rights groups to do their jobs, including development of new and
strong algorithms and training in their use, they endanger the ability
of the free world to obtain the sensitive, timely, and accurate data
needed to monitor the progress of human rights throughout the world.
AAAS is already on record as opposing the Regulations on these
grounds.

For these reasons, AAAS respectfully submits this brief as amicus
curiae in support of the District Court's decision enjoining
enforcement of the defendants' Export Administration Regulations. This
brief is filed with the written consent of each of the parties
pursuant to Fed. R. App. P. 29.

ISSUES PRESENTED FOR REVIEW

This case presents a challenge to the Export Administration
Regulations ("EAR," or the "Regulations"), 15 C.F.R.  730-774 (1997),
which control export of a variety of items, including computer source
code that can be used to encrypt data. The issues presented are:

1. Whether computer source code used to encrypt data is pure speech,
and therefore entitled to plenary protection under the First
Amendment.

2. Whether the Regulations violate the Equal Protection Clause of the
Fourteenth Amendment, as applied to the Federal Government through the
Fifth Amendment.

3. Whether the Regulations abridge the privileges and immunities of
United States citizens guaranteed under the Fifth and Fourteenth
Amendments.

4. Whether the Regulations violate the penumbral right of privacy
guaranteed under the Constitution.

STATEMENT OF THE CASE

We adopt the statement of the case in the brief of Plaintiff-Appellee
Bernstein.

SUMMARY OF ARGUMENT

1. Computer source code embodying concepts developed in the academic
field of cryptography is not a product whose export can be regulated;
rather, it is speech itself, communicated in the protected sphere of
academia (among other places). It is therefore entitled to plenary
First Amendment protection, which requires that the applicable
Regulations be struck down.

2. The Regulations cannot satisfy even intermediate scrutiny because
the Government is without power to classify information, such as
cryptographic ideas, that is pervasive in the public domain.

3. The Government is similarly without power to make irrational
distinctions, as these Regulations do, between cryptography students
who are citizens or resident aliens and those who are nonresident
aliens, and between cryptography professors who teach only American
students and those who teach classes attended by at least one
nonresident alien. Generalized national security interests lend no
support to this irrational distinction, which should be struck down as
a violation of the Fourteenth Amendment's equal protection guarantee,
as applied to the Federal Government through the Fifth Amendment.

4. The Regulations also deny effective access by scientists and others
to the Internet by hindering the development of cryptographic
techniques necessary to protect Internet communications. In so doing,
they abridge one of the privileges and immunities of American
citizenship, namely, a right of access to our nation's communications
infrastructure, a right recognized since the beginning of the
Republic. The Regulations therefore violate the privileges and
immunities clause of the Fourteenth Amendment, as applied to the
Federal Government through the Fifth Amendment.

5. The Regulations substantially restrict the ability of speakers and
recipients alike to safeguard their communications using effective
cryptographic measures. In so doing, they violate established
constitutional norms for the protection of privacy interests,
unjustifiably hindering scientific progress and jeopardizing the
efforts of organizations like AAAS to provide the means of secure
communications necessary to promote human rights throughout the world.
Individually and cumulatively, these constitutional concerns  freedom
of expression, equal protection, privileges and immunities, and
privacy  require affirming the judgment of the District Court that
the Regulations be enjoined.


ARGUMENT

I. The Regulations Violate the First Amendment

 A. Source Code, the Language of Academic Discourse on Cryptography,
    Is Pure Speech

The Government's entire case proceeds from its conception that
encryption source code is a dangerous "product," indistinguishable
under the Regulations from an automatic weapon, an explosive device,
hazardous chemicals, or any other product subject to export control.
As the Government concedes (albeit in passing), encryption source code
"can be read and understood by persons, such as computer scientists
and programmers, who are trained in the particular programming
language in which the source code is written." Gov't Br. at 27. It is
therefore no mere "product" that the Government would restrict, but
language itself -- and not just any language, but language representing
the medium of exchange in the academic field of cryptography. This is
not a product but speech; so it is at the very core of the First
Amendment.

This Court has recognized that, at some level, all speech is conduct,
because "speech in any language consists of the 'expressive conduct'
of vibrating one's vocal chords, moving one's mouth and thereby making
sounds, or of putting pen to paper, or hand to keyboard." Yniguez v.
Arizonans for Official English, 69 F.3d 920, 934 (9th Cir. 1995) (en
banc), cert. granted, 116 S. Ct. 1316 (1996), vacated on other grounds
and remanded sub nom Arizonians for Official English v. Arizona, 117
S. Ct. 1055, vacated and remanded, 118 F.3d 667 (9th Cir. 1997). The
embodiments of this speech-producing conduct -- books, audio
recordings, computer disks -- can be called "products." However, that
label has no constitutional significance because the product consists
of language, "a sophisticated and complex system of understood
meanings." Id. at 934-35. By definition, language is "pure speech,"
not conduct, regardless of the form it ultimately takes. Id. at
935-936. Products that are language therefore are entitled to full
First Amendment protection. Id. at 934-35 & n.17 (declining to treat
choice of language merely as "expressive conduct" meriting "relaxed"
First Amendment scrutiny).

The Government's brief misses the importance of the language at issue
in this case. Cryptography cannot be a "flourishing" discipline if
cryptographers around the world -- mathematicians, physicists, computer
scientists, and engineers -- cannot talk to one another in the language
that best communicates the full range of their ideas, and if they
cannot freely publish in international journals (print or electronic).
Gov't Br. at 49 (claiming that EAR leaves open "basic avenues of
academic discourse"). Although theoretical ideas in cryptography can
be expressed in many ways, including schematic diagrams and
mathematical formulae, only computer source code enables
cryptographers to communicate ideas in the form that can be
definitively proven -- or rejected -- by scientific peers.

Source code for this reason is not just another carrier for
cryptographic ideas that might be conveyed just as well in languages
that are more palatable to the Government. Like concepts expressed in
one human language that do not translate literally into another,
cryptographic concepts that cannot be expressed in the "native"
language of source code cannot be expressed effectively at all. For
this reason, the Government's explanation that, "we are regulating a
product but not the information the product conveys," is wholly
inaccurate.

The Government also errs in its focus on what encryption source code
can do, as opposed to what it conveys to its intended audience. The
Government's concern is that source code is self-executing; a foreign
recipient of source code can, without understanding that source code,
convert it into object code capable of directing a computer to encode
text. In this, the Government claims, source code is different from
blueprints, recipes, and other "how-to" materials, each of which the
Government apparently would agree are speech. See Gov't Br. at 28.
The distinction between "self-executing" language and the more
familiar language in most technical writing is illusory. First, source
code is not literally self-executing. It must be put into a properly
programmed computer that is configured to "compile" the source code by
converting it into machine-executable commands upon the user's
instruction to do so. Second, although "how-to" manuals typically are
not self-executing, the intended result often can be achieved with
only the most superficial understanding by the person consulting the
manuals. At the very least, if the recipient himself lacks the
understanding necessary to bridge the gap between language and result,
it is a simple matter to find someone who can. This is closely
comparable to the situation of someone who seeks to install new source
code but is unsure of the proper steps.

The District Court was correct that the instructional, functional
value of language does not diminish its entitlement to full First
Amendment protection. See Bernstein v. United States Dept. of State,
922 F. Supp. 1426, 1435 (N.D. Cal. 1996) (citation omitted). For
instance, manufacturing specifications expressed in mathematical terms
mean something to an engineer, even though those terms might also be
translated, using a standard program requiring minimal intervention by
the engineer, into object code capable of directing machines to
produce the specified product. Similarly, encryption source code means
something to a cryptographer, even if he were to choose not to read or
analyze it, but simply to translate it into object code and use it to
encode messages.

Because technical speech such as source code often is expressed in an
academic context, it merits special constitutional protection. "Our
Nation is deeply committed to safeguarding academic freedom, which is
of transcendent value to all of us and not merely to the teachers
concerned. That freedom is therefore a special concern of the First
Amendment. . . ." Keyishian v. Board of Regents, 385 U.S. 589, 603
(1967) (emphasis added). "Freedom to reason and freedom for
disputation on the basis of observation and experiment are the
necessary conditions for the advancement of scientific knowledge."
Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957 ) (Frankfurter, J.,
concurring). See also Rosenberger v. Rector & Visitors of Univ. of
Virginia, 515 U.S. 819, 835 (1995) (university setting "at the center
of our intellectual and philosophic tradition"); Widmar v. Vincent,
454 U.S. 263, 276 and 279 n.2 (1981) (Powell, J. and Stevens, J.,
concurring); Regents of the Univ. of California v. Bakke, 438 U.S.
265, 312 (1978).

Scientists like Professor Bernstein must be free to develop their
cryptographic ideas. Their academic discourse plays a critical role in
advancing knowledge about the electronic exchange of information. This
discourse is protected both for its pure academic and its practical
value. As a nation we are increasingly dependent on electronic media
like the Internet to convey our most important and sensitive
information, be it economic, political, or personal, but our ability
to protect that information from malicious interlopers has not kept
pace. Strong encryption algorithms (among other techniques) must be
developed, refined, standardized, and commercialized if electronic
communication is to be protected reliably against potentially
devastating intrusions.

This effort begins with academic freedom, the ability to develop
encryption ideas with, and test them against, the very best scientific
minds in the world. Regulations such as the EAR that strike at the
very language scientists use to talk to each other "impose a strait
jacket upon the intellectual leaders in our colleges and
universities." Sweezy, 354 U.S. at 250. Absent the most compelling
need and the most narrow means of meeting that need, that strait
jacket is intolerable. Id. at 251 ("We do not now conceive of any
circumstance wherein a state interest would justify infringement of
rights in these fields [of academic and political freedom]").


 B. O'Brien Intermediate Scrutiny Is Inapplicable Because Source Code
    is Pure Speech, Not Conduct With Expressive Elements

Appropriately unsure of its distinctions between product and
information, conduct and speech, the Government attempts to justify
relaxed First Amendment scrutiny by claiming that the Regulations are
content-neutral. The O'Brien test for content-neutral restrictions
does not apply, however, to pure speech; and, however it is
manipulated by the Government, O'Brien cannot save Regulations that
effectively eliminate an entire topic of academic discourse.
The O'Brien test permits an intermediate level of First Amendment
scrutiny for restrictions on "expressive conduct," actions -- such as
burning a draft card, as O'Brien himself did -- that are not themselves
speech, but nonetheless convey at least an incidental symbolic
message. United States v. O'Brien, 391 U.S. 367 (1968) (draft card
burning); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)
(nude dancing); Texas v. Johnson, 491 U.S. 397 (1989) (flag burning);
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)
(sleeping in public parks for purposes of demonstration); Tinker v.
Des Moines Indep. Community School Dist., 393 U.S. 503 (1969) (wearing
black arm bands to protest war in Vietnam). Where O'Brien applies, it
displaces strict scrutiny, which would require the Regulations to be
narrowly tailored to advance a compelling government interest. Under
O'Brien, regulation of expressive conduct is permissible if it
furthers an important or substantial government interest; if that
interest is unrelated to suppression of speech; and if the incidental
burden on speech is no greater than necessary. O'Brien, 391 U.S. at
377.

Source code is not conduct, however, but speech in its purest form. It
is people talking to one another using a complex system of mutually
understood meanings. O'Brien therefore does not apply. See Cohen v.
California, 403 U.S. 15, 18 (1971) (distinguishing O'Brien on the
grounds that defendant was being prosecuted for "the words [he] used
to convey his message to the public," not his conduct in the act of
communicating those words); Yniguez, 69 F.3d at 936 (holding that
choice of language is "pure speech," not "expressive conduct").
O'Brien applies to conduct with "incidental" speech elements, not to
speech (like source code) that may have functional elements.

The O'Brien test by its own terms does not apply to "pure" as opposed
to "incidental" speech categories. The O'Brien framework requires that
the government's interest be unrelated to the suppression of speech.
The Government cannot satisfy that element in this case, as the
Regulations aim directly, not at conduct, but at an entire category of
speech. See Boos v. Barry, 485 U.S. 312, 319 (1988) (holding that a
prohibition is not "content-neutral" if it "'extends . . . to
prohibition of public discussion of an entire topic.'") (quoting
Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537
(1980)). Because meaningful technical discussion about cryptography
cannot take place without using source code, the Regulations
effectively take much of the topic of cryptography out of the academic
forum. Strict scrutiny must follow. Turner Broadcasting Sys., Inc. v.
F.C.C., 512 U.S. 622, 642 (1994) ("Our precedents thus apply the most
exacting scrutiny to Regulations that suppress, disadvantage, or
impose differential burdens upon speech because of its content")
(citations omitted).

The Government attempts to avoid the implications of targeting pure
speech. It argues that, because it had no intent to suppress any
particular message when it decided to regulate encryption source code,
the Regulations still qualify for O'Brien intermediate scrutiny.
The "intent" element that the Government now attempts to graft onto
O'Brien is lifted from the equally inapplicable "time, place, or
manner" test. Reasonable restrictions on the time, place, or manner of
engaging in protected speech are acceptable so long as, among other
things, they are '"justified without reference to the content of the
regulated speech.'" See Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (citation omitted). The "time, place, or manner" analysis only
applies, however, when the Government is seeking to accommodate
competing demands on the same forum. See Id. at 790-91 (upholding law
requiring all performers at public park bandshell to use city sound
equipment as a means of controlling excessive noise that would
infringe on other uses of the surrounding park); Clark, 468 U.S. 288
(upholding Regulations prohibiting overnight camping in public parks,
even when camping is part of demonstration, as a means of maintaining
condition of park for other visitors); One World One Family Now v.
City and County of Honolulu, 76 F.3d 1009, 1012-1013 & n.3 (9th Cir.)
(applying time, place, manner analysis to uphold restriction on
peddling in a public forum, city sidewalks, as a means of avoiding
congestion and visual clutter), cert. denied, 117 S. Ct. 554 (1996).
The Government does not seriously attempt to bring this case in line
with the time, place, or manner cases; nor could it.

First, as a "relatively unlimited" and "non-invasive" medium, the
Internet is not the kind of forum that requires government
intervention (in the form of time, place, or manner restrictions) to
allocate scarce forum resources or to assure that no one voice, use,
or interest displaces all others. See Reno v. American Civil Liberties
Union, 117 S. Ct. 2329, 2342-43 (1997) (contrasting Internet with more
limited and invasive television and radio broadcast spectrum, heavily
regulated by the Government). Unlike a sidewalk, a park, or the finite
broadcast spectrum, the Internet that cryptographers use to
communicate via source code is not a scarce forum or resource that
must be allocated among competing speakers. Cf. Turner, 512 U.S. at
637-38 and 662-63 (citing government interest in allocation of
broadcast licenses due in part to "unique physical limitations of the
broadcast medium"). Plainly, the Government is not at all using the
Regulations to assign a reasonable time, place, or manner for
electronic discourse on cryptography. Instead, it is altogether
banning much of a particular topic of Internet discourse. A
significant portion of scholarly discourse on cryptography will not
survive this ban on source code, both because ordinary language cannot
express the necessary concepts and because, as a practical matter,
academic discourse and publication in a technical field like
cryptography will not flourish if it cannot transcend international
boundaries. By definition, such a categorical restriction cannot be
"reasonable." See City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 47 (1986) ("'content-neutral' time, place, and manner Regulations
are acceptable so long as they . . . do not unreasonably limit
alternative avenues of communication") (emphasis added; citations
omitted).

There is a second, even more fundamental flaw in the Government's
"intent" argument. "Time, place, or manner" analysis does not apply to
restrictions that are based on content; and regardless of whether the
government intended to target any particular message or viewpoint, it
targeted content when it banned export of all encryption source code.
See Boos, 485 U.S. at 319 (government neutrality with regard to
viewpoint does not render ban on entire category of speech
content-neutral). In Cincinnati v. Discovery Network, Inc., 507 U.S.
410 (1993), the Court invalidated an ordinance banning news-racks from
public sidewalks if they contained commercial publications, while
permitting news-racks containing newspapers. Even though the city
acted with no apparent animus toward any of the ideas expressed in the
banned commercial publications, its decision to remove an entire
category of speech -- commercial speech -- from public sidewalks was
deemed an unconstitutional content-based restriction. Id. at 429-30
("by any commonsense understanding of the term," a ban on an entire
class of speech is content-based). Like the City of Cincinnati, the
Government here has chosen to target a speech topic, namely, discourse
about cryptography, in the native language of cryptography. See Id.
For these reasons, O'Brien cannot fit the pure academic speech at
issue in this case. The fact that O'Brien and the time, place, or
manner cases may overlap in some cases, as when expressive conduct is
regulated in a public forum, does not mean that the two lines of
authority can be combined to ban speech that neither could reach on
its own.

 C. Although Prior Restraints on Encryption Source Code Are
    Presumptively Invalid, the Regulations at Issue Would Fail Even
    Under O'Brien

The EAR impose a content-based restriction on encryption source code --
pure speech, created and exchanged in an academic environment and
recognized as a "special concern" of the First Amendment. The EAR
therefore cannot survive unless the Government can show that they are
narrowly tailored to advance a compelling government interest. See
Perry Educ. Assn., 460 U.S. at 45 (setting forth strict scrutiny test
for content-based restrictions). There is an even greater presumption
of unconstitutionality that attaches here because the Government seeks
to restrain this speech in advance. See Burson v. Freeman, 504 U.S.
191, 199 (1992); New York Times Co. v. United States, 403 U.S. 713
(1971); Near v. Minnesota ex. rel. Olson, 283 U.S. 697 (1931); CBS,
Inc. v. United States District Court for C.D. of Cal., 729 F.2d 1174
(9th Cir. 1983).

As Mr. Bernstein demonstrates in his own brief, these barriers are
insuperable for the Government. But because the scientists who
comprise AAAS engage every day in technical speech that is at risk of
being mistaken for conduct, we argue separately that, even if the
lesser standard of O'Brien did apply to source code, Mr. Bernstein
must still prevail. This is because the Regulations in fact do not
further a substantial government interest, and because the asserted
interest is so broad that the EAR unavoidably burden speech far more
than necessary. See O'Brien, 391 U.S. at 377.

      1. The Asserted Government Interest Cannot Justify
	 Classification of Encryption Source Code

In the name of national security, the Government claims the
unprecedented authority to classify and restrict publicly available
information that it did not create or gather. In essence, this is the
authority to appropriate widely known information the Government does
not own by trying to make it a retroactive state secret. The
Government's generalized interest in the integrity of its intelligence
gathering apparatus is insufficient under any test to justify this
aim.

Judicial recognition of the right to keep secrets is perhaps most
directly informed by established principles of trade secret law. Under
that body of law, information cannot be secret unless its value is
derived from not being generally known to the public (and it is the
subject of reasonable efforts to maintain its secrecy). See, e.g.,
Cal. Civ. Code  3426.1(d) (Deering 1997). Maintaining secrecy is
essential. Absent reasonable efforts to limit access and disclosure of
information, information that finds its way into the public domain is
not protectable as a secret. See, e.g., MAI Sys. Corp. v. Peak
Computer, 991 F.2d 511, 521 (9th Cir. 1993)), cert. dismissed, 510
U.S. 1033 (1994); Vacco Indus., Inc. v. Van Den Berg, 5 Cal. App. 4th
34, 50 (1992). It is axiomatic, moreover, that only the owner of
information can take the steps necessary to protect it, and that only
the owner can properly appropriate the secret once created. See, e.g.,
Morton v. Rank America, Inc., 812 F. Supp. 1062, 1073 (C.D. Cal.
1993).

Each of the major "national security" cases that the Supreme Court has
addressed verifies that these basic trade secret notions have currency
even when Government secrecy is at issue. The Government's interest in
classifying information can be recognized only to the extent that the
secrets it protects are its own and are still in fact secrets.
In Snepp v. United States, 444 U.S. 507 (1980), the Court held that a
former CIA agent could be enjoined from publishing sensitive
information about certain CIA activities in Vietnam, based on a term
in his employment contract requiring him to submit all such
publications for advance review by the CIA. Despite the impact on
Snepp's right to express himself, the result is justified under trade
secret principles. Snepp's book contained information that belonged to
the Government, and that he would not have learned except through his
employment with the CIA. Like many employers, the CIA protected its
secrets by having Snepp release some of his expressive interests in
exchange for employment. Id. at 507-08. See MAI Systems, 991 F.2d at
521 (employer limitations on employee access to, and use of, trade
secrets); see also Haig v. Agee, 453 U.S. 280 (1981) (upholding
revocation of passport for former CIA agent who admitted to using
information learned in the course of his employment to expose CIA
operations abroad).

The Court has had far greater difficulty when the information is not
secret or is not in the hands of a government employee bound by oath
and contract not to disseminate the information. No amount of concern
about national security was sufficient, for example, when the Court
refused to enjoin publication of sensitive government information that
had already been leaked to the press in the Pentagon Papers case.
Pentagon Papers, 403 U.S. 713 (1971). As Justice White noted in
concurrence, "publication has already begun and a substantial part of
the threatened damage has already occurred. The fact of a massive
breakdown in security is known, access to the documents by many
unauthorized people is undeniable, and the efficacy of equitable
relief against these or other newspapers to avert anticipated damage
is doubtful at best." Id. at 733. Similarly, in Snepp, while Snepp was
required to place profits from his unauthorized publication in
constructive trust, no effort was made to retrieve his work from the
public domain. See 444 U.S. at 508.

The mathematics underlying symmetric and asymmetric key cryptography
are known the world over, as are the methods for implementing those
principles in encryption hardware and software. This is not to say
that scientists such as Professor Bernstein do not contribute very
significant improvements, innovations, and standards critical to the
development of the field of cryptography. But Snuffle is only one
possible variation on well-recognized mathematical principles. The
means exist at this very moment -- indeed, they are common -- to encode
messages with sufficient strength to frustrate American intelligence
operations in the very manner the Government anticipates. The
Government gains precisely nothing from banning the export of source
code. Information in the public domain is not a secret and cannot be
classified and protected as such. The genie cannot be forced back into
the bottle. Thus, the Government is not free to assert ownership over
Professor Bernstein's speech as if he were a government employee
rather than a private citizen, and any thought that it can classify
his ideas as secrets must dissolve with the recognition that those
principles are already in the national and international public
domain. Because encryption source code is not a "secret," as that term
has been defined and applied in our law, this Court must find that the
Government has no substantial interest in protecting it through export
control, or any other means.

The radical nature of the Government's effort to classify source code
as a national secret is apparent when one imagines the same efforts
being made in another, perhaps more accessible, context. During World
War II, many of the Navajo Indians in the United States Marine Corps
were recruited and deployed as "Navajo Code Talkers" in the Pacific
theater. The Navajo Code was an oral code consisting entirely of
common Navajo words. Those words could be translated to English words
that, in turn, corresponded to military terms that did not exist in
Navajo. The Navajo word, "gini," for example, means "sparrow hawk,"
which is the name signifying a dive bomber. The Japanese were never
able to break the code, and it was credited with contributing
substantially to American military success, particularly at Iwo Jima.
The code's success stemmed from the fact that, while the Navajo
language's tonal complexity rendered it almost incomprehensible to
outsiders, it was clear to native speakers, who used it to exchange
messages rapidly and accurately.

Although the United States did swear the Navajo marines to secrecy
about the code so that it could be used later in Korea and Vietnam,
that restriction obviously could operate only on that part of the code
that was proprietary to the United States, that is, the particular
associations established between English words translated from the
Navajo, on the one hand, and particular military terms, on the other.
Navajo marines were asked not to share their experiences as Code
Talkers (indeed, letters home were intercepted during the war); but
national security was never thought to require Navajos to stop
speaking their language altogether after the war for fear that a
future enemy would break the code.

Nevertheless, the Government maintains in this case that for national
security reasons it can appropriate a language -- encryption source
code that it did not invent and that its enemies (and everyone else)
can readily procure elsewhere. It apparently does this on the grounds
that encryption source code, like Navajo, is comprehensible to only a
relatively few human beings (cryptographers), and on the erroneous
assumption, properly not made in the case of the Navajo, that its
"speakers" can communicate just as well using a less sensitive medium.

This extraordinary effort at making non-governmental language secret
comes without any identification of circumstances exigent enough to
merit serious constitutional consideration. Even assuming that export
of certain encryption source code could hinder a war effort, we are
not at war. Nor does it appear that there has been any particular
connection between the generalized private export of encryption
technology and frustration of specific American intelligence or
military operations. Cf. Haig, 453 U.S. 280 (declared purpose of
former CIA agent's foreign travel was to dismantle intelligence
infrastructure). Put another way, there is no "clear and present
danger" that encryption software exported abroad will significantly
increase the harm to our national security. The harm has already
occurred due to the world-wide spread of knowledge about the
mathematical basis for, and the technical means for implementing,
strong encryption. See Schenk v. United States, 249 U.S. 47, 52
(1919).

Under the modern formulation of the "clear and present danger" test, a
court must "make its own inquiry into the imminence and magnitude of
the danger said to flow from the particular utterance and then to
balance the character of the evil, as well as its likelihood, against
the need for free and unfettered expression." Landmark Communications,
Inc. v. Virginia, 435 U.S. 829, 842-43 (1978). The Government of
course would prefer that strong encryption not be available to foreign
intelligence targets. But a variety of very strong encryption is
already widely available outside the U.S. Further, it is
uncontroverted that any persons who wish to do so can evade the EAR
simply by using strong encryption programs bought in the U.S. In
short, the actual barrier to export of strong encryption software is
not just porous; it is virtually nonexistent. This fact wholly
undermines any assertion by the Government of an imminent threat that
the EAR would stop.

In reality, the Government seeks to regulate the export of ideas that
circulate freely within American borders. Open discussion of ideas
cannot be stopped at national borders, however; ideas are very much
unlike munitions, physical objects of war whose export can and should
be controlled. Therefore, at the end of the day, it should surprise no
one that the interest claimed by he Government is not only
insubstantial, but nonexistent.

      2. The Asserted Interest in National Security Is So Broad that
	 Wholesale Restrictions on Speech Are Inevitable

If the Government's asserted interest in national security were held
important enough to justify Government classification of public domain
information it does not own whenever a concern existed about how the
information might be used, no incursion on speech, however
substantial, could ever be dismissed as "unnecessary." Even O'Brien's
relatively modest protection of speech would become meaningless. See
Turner, 512 U.S. at 662 (means chosen must "not burden substantially
more speech than is necessary to further the government's legitimate
interests") (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799
(1989)). Here, for example, the breadth of the asserted interest would
enable the Government to argue that an entire category of scientific
discourse could be eliminated simply because export controls might
contribute in a small way to the goal of keeping American encryption
source code out of certain foreign hands. See Gov't Br. at 35. Neither
O'Brien nor any First Amendment test permits this kind of bootstrap
justification for wholesale speech restrictions.

II. The Regulations Violate Equal Protection Applied to the Federal
    Government Through the Fifth Amendment

Rules that differentiate among classes of people are inherently
suspect. The Regulations, when applied to legal scholars such as
Professor Bernstein in the context of their teaching responsibilities,
violates the equal protection clause by creating two insupportable
distinctions between students who are either U.S. citizens or resident
aliens and those who are foreign persons, and between professors who
teach classes comprised solely of U.S. citizens and resident aliens
and those who teach classes attended by at least one nonresident
alien.

In classes made up of only U.S. citizens and resident aliens,
cryptography may be taught freely, without government interference.
Once even a single nonresident alien enrolls in the class, however,
the rules change. The Government deems the teaching of cryptography to
nonresident alien students to be an "export" of encryption technology.
It therefore requires that Professor Bernstein and similarly situated
scholars comply with the full-blown EAA/IEEPA scheme and obtain an
export license from the Department of Commerce before they are able to
teach cryptographic concepts to a class containing even a single
nonresident alien student. Thus, the Regulations single out students
because of their alienage, and allows the government to interfere with
the content of the scholars' lectures based on the immigration status
of the students in their classrooms. Citizens and resident aliens may
be taught cryptography at our universities with no requirement that
the professor seek a license from the Government to do so. The same is
not true for nonresident aliens. The presence of a nonresident alien
in the classroom subjects cryptography instruction to government
licensing standards. This distinction bears no relationship to the
Regulations at issue. Hence, neither distinction passes constitutional
muster.

The Fifth Amendment Due Process Clause incorporates the Fourteenth
Amendment's equal protection guarantee and makes it applicable to the
federal government. Bolling v. Sharpe, 347 U.S. 497 (1954). Foreign
students, including nonresident aliens, are entitled to equal
protection guarantees. Plyler v. Doe, 457 U.S. 202, 210-11 (1982).
Federal legislation that classifies on the basis of alienage violates
equal protection guarantees if it is not rationally related to a
legitimate government interest. United States v. Lopez-Flores, 63 F.3d
1468, 1475 (9th Cir. 1995), cert. denied, 116 S. Ct. 794, cert.
denied, 116 S. Ct. 795 (1996). Here, there is no rational
relationship between the Government's avowed interest and the
classifications made under the Regulations.

The Government asserts that the Regulations are necessary to prevent
encryption technology from being disseminated outside of the country.
Preventing this technology from being taught to a particular group of
students at American colleges and universities does not accomplish
this goal. Although it is true that nonresident aliens, unless they
change their immigration status, will be required to leave the country
at some point in time, it also is true that all students, whether U.S.
citizens, resident aliens or nonresident aliens, are free to leave the
country at any time. Thus, any student has equal opportunity to
disseminate encryption technology abroad. Requiring a professor to
obtain a license before teaching encryption technology to nonresident
aliens, but not to U.S. citizens and resident aliens, therefore is
irrational because it does not achieve the Government's stated goals.
Indeed, the distinction between resident aliens and nonresident aliens
in this context makes no sense. Many resident aliens formerly were
nonresident aliens -- and both classes of aliens are free to travel to
their homelands at will. The Government cannot seriously argue that a
change in immigration status from nonresident to resident alien
changes the security threat that the alien poses. Hence, the
classification created by these Regulations arbitrarily subjects
nonresident aliens to a different set of rules. Without justification,
it denies them the educational opportunities enjoyed by citizens and
resident aliens. In doing so, it denies them their right to equal
protection of the laws and violates this country's basic notions of
equality.

Scholars such as Professor Bernstein who teach cryptography similarly
are denied equal protection. Since all students who attend
cryptography classes have the unimpeded right to travel in and out of
the United States, the Regulations irrationally distinguish between
professors who teach nonresident aliens and those who do not, by
requiring only the former to comply with licensure procedures. Because
cryptography classes are small -- typically 3 to 5 students per class --
the burden of complying with licensing requirements, as well as the
time required to obtain the license, very well may cause a scholar (or
the institution with which he or she is affiliated) to decide not to
offer an encryption technology class to its students, thereby
depriving all students of an educational opportunity.

It is irrational to force educational institutions such as Professor
Bernstein's to distinguish, for academic, administrative reasons,
between citizens and aliens, and between non-resident and resident
aliens, before being allowed to offer encryption technology classes.
This is not a question of charging foreign students higher,
out-of-state tuition. Toll v. Moreno, 458 U.S. 1 (1982). Nor is it a
matter of requiring them to maintain health insurance while not
imposing the same requirement on U.S. students. Ahmed v. University of
Toledo, 664 F. Supp. 282 (N.D. Ohio 1986), appeal dismissed, 822 F.2d
26 (6th Cir. 1987). Rather, it affects the substance of the classes
foreign students can take, what can be taught in the classes they do
take, and what they can learn.

By so affecting the substance of education provided at American
colleges and universities, the Regulations undermine our nation's
fundamental dedication to academic freedom. Keyishian, 385 U.S. at 603
(1967) (overturning statute providing for removal of faculty members
for seditious utterances or Communist Party membership). "The
essentiality of freedom in the community of American universities is
almost self-evident. . . . To impose a strait jacket upon the
intellectual leaders in our colleges and universities would imperil
the future of our Nation." Sweezy v. New Hampshire, 354 U.S. 234, 250
(1957) (invalidating contempt finding following investigation pursuant
to Subversives Activities Act in which university professor was asked
to disclose the contents of his lectures). Included among the "four
essential freedoms" of a university are the ability to determine "what
may be taught [and] how it shall be taught." Id. at 263 (Frankfurter,
J., concurring). Government regulations infringing on these freedoms
must be held to exacting scrutiny. In this instance, the Regulations
must be invalidated.

III. The Regulations Violate the Privileges and Immunities Clause as
     Applied to the Federal Government under the Fifth Amendment by
     Infringing the Right to Make Use of the Most Effective Commercially
     Available Means of Communication

Until now, courts have had little occasion to identify it as such, but
the right to make use of the most effective available means of
communicating has always been a privilege and immunity of American
citizenship, enforceable at least against the Federal Government if
not also against the governments of the several states. The right
asserted places no affirmative obligation on the Government; the
Government need not provide each citizen with communications
technology, nor make its own secret communications technology
commercially available. Instead, the right demands only that the
Government not unduly impede a citizen's access to the best
commercially available means of communicating.
Today, that means is the Internet. In terms of scale, speed, capacity,
and almost every other relevant variable, the Internet is far and away
the most effective (indeed, revolutionary) method of communication
generally available. Access to it, like access to our public places
and our telephones, is a privilege and immunity of American
citizenship. Meaningful Internet access, AAAS submits, requires
unhindered development of the cryptographic applications needed to
make the Internet secure for citizens who use it.

 A. The Right of Effective Access to the Prevailing Communications
 Infrastructure Is a Privilege of American Citizenship

It is significant that one of the first available "technologies" for
communicating on a large scale, taking to the streets and public
parks, has "from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens." Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515
U.S. 557, 579 (1995) (Roberts, J.) (quoting Hague v. Committee for
Indus. Org., 307 U.S. 496, 515 (1939). That right, existing in concept
long before the birth of the Republic, became a privilege of American
citizenship when the United States was formed, and when common areas
and thoroughfares that were once only local became, among other
things, expressive platforms for a national citizenry. See Hague, 307
U.S. at 515-16 (referring to right of expression in streets and parks
of Jersey City, New Jersey as a "privilege of a citizen of the United
States").

The citizens' right to use the mails enjoys the same status, although
the right is not specifically articulated as a privilege and immunity
of national citizenship. As Justice Brennan wrote, concurring in
United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453
U.S. 114 (1981):

  Just as "streets and parks . . . have immemorially been held in trust
  for the use of the public and, time out of mind, have been used for
  purposes of assembly, communicating thoughts between citizens, and
  discussing public questions," Hague v. CIO, 307 U.S. 496, 515 . . .
  so too the mails from the early days of the Republic have played a
  crucial role in communication.  The Court itself acknowledges the
  importance of the mails as a forum for communication:

   "Government without communication is impossible, and until the
  invention of the telephone and telegraph, the mails were the principal
  means of communication. . . . In 1775, Franklin was named the first
  Postmaster General by the Continental Congress, and, because of the
  trend toward war, the Continental Congress undertook its first serious
  effort to establish a secure mail delivery organization in order to
  maintain communication between the States and to supply revenue for
  the Army." Ante, at 2680-2681 . . . (emphasis added).

  The Court further points out that "[t]he Post Office played a vital
  . . . role in the development of our new Nation," ibid. (emphasis
  added).

453 U.S. at 138.

The common thrust of these rights is that they are incidents of a
national infrastructure. The rights are conceived, not only as rights
of expression, but as rights to use a national communications
apparatus as an effective platform for that expression. They thus fit
squarely within a longstanding definition of privileges and immunities
as those rights "which owe their existence to the Federal government,
its national character, its Constitution, or its laws."
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873) (emphasis
added); see also Thornton, 514 U.S. at 843-45 ("federal character" of
the government and the "relationship between the people of the Nation
and their National Government" give rise to "privileges and
immunities" flowing to the American people by virtue of their national
citizenship) (Kennedy, J., concurring).

This means that the citizen must have such access as is generally
available within the prevailing national communications scheme. The
Government is no more empowered to prevent such access than it is to
prevent access to the means of traveling throughout the country, or to
diminish its citizens' ability to be heard on national issues through
the representatives of their choice. See Crandall v. Nevada, 73 U.S.
(6 Wall.) 36, 48-49 (1867) (right of interstate travel); Thornton, 514
U.S. at 843-45 (states prohibited from abridging national privileges
and immunities by burdening right to vote for national
representatives) (Kennedy, J., concurring) .

 B. Precedent Limiting the Force of the Fourteenth Amendment's Version
    of Privileges and Immunities Has No Application to the Right of
    Effective Communication Asserted Here Against the Federal Government

To be sure, the right to use the most effective available means of
communication is not explicitly enumerated among the "short list" of
privileges and immunities emerging from the Slaughter-House Cases, 83
U.S. (16 Wall.) 36, and their progeny. That list was later restated in
Twining v. New Jersey, 211 U.S. 78 (1908), to include the following:
the right of interstate travel; the right to petition Congress for a
redress of grievances; the right to vote for national officers; the
right to enter public lands; the right to be protected against
violence while in lawful custody of the U.S. Marshal; and the right to
inform federal authorities of a violation of federal law. Id. at 97
(citations omitted). Even if the Twining list were exhaustive as
against the states, however, nothing in that case or any other of the
Slaughter-House progeny purports to limit rights asserted against the
Federal Government, such as the one that is pressed here.

At issue in the Slaughter-House Cases was a state-created monopoly
challenged as an infringement of the privileges and immunities
guaranteed against state infringement under the recently ratified
Fourteenth Amendment. In rejecting that challenge, the Court had
occasion to collect only those privileges and immunities that the
national government had authority to prevent the sovereign states from
abridging. Because the challenge was to state legislation, there was
no occasion to consider or recite the full range of privileges and
immunities that could be enforced against the national government.
Indeed, the latter rights went well beyond the "short list" first
announced in Justice Miller's Slaughter-House opinion. All of the
amendments constituting the Bill of Rights, for instance, fit within
the Slaughter-House definition of "privileges and immunities," because
they establish rights "which owe their existence to the Federal
government, its national character, its Constitution, or its laws."
This is true even though these rights, as originally conceived, were
not enforceable against the states. 83 U.S. (16 Wall.) at 79. Justice
Miller had no reason to allude to the Bill of Rights as a compendium
of privileges and immunities enforceable against the federal
government.

The distinction between the two kinds of privileges and immunities is
manifest in United States v. Cruikshank, 92 U.S. 542 (1876), in which
the Court identified a First Amendment right, enforceable at that
point only against the Federal Government, "to assemble and to
petition the Government for a redress of grievances." The Court
identified a far narrower version of that right as a privilege and
immunity enforceable against the states, namely, "[t]he right of the
people peaceably to assemble for the purpose of petitioning Congress
for a redress of grievances." Id. at 552 (emphasis added). Twining
itself makes plain that the Court was reluctant to articulate an
expansive list of privileges and immunities, not because it was
concerned about the vulnerability of the Federal Government to
assertions of rights against it (as in this case), but because it was
quite passionately concerned that the states would lose their
sovereignty if they could be made to answer for abridgment of federal
rights. See, e.g., Twining, 211 U.S. at 92 ("[W]henever a new
limitation or restriction is declared [against a state], it is a
matter of grave import, since, to that extent, it diminishes the
authority of the state, so necessary to the perpetuity of our dual
form of government, and changes its relation to its people and to the
Union") (emphasis added).

Thus, whatever modern courts might make of the unfulfilled promise of
the Fourteenth Amendment's privileges and immunities clause as a curb
on state power, especially now that the feared federal encroachment
has come about through the amendment's other clauses, one thing is
clear: Slaughter-House and its progeny did not involve and do not
limit the assertion of privileges and immunities in cases like this
one, where the rights claimed are claimed against the Federal
Government only. See Palko v. Connecticut, 302 U.S. 319, 326 (1937)
(distinguishing between "immunities and privileges" guaranteed as
against the federal government, which include the guarantees of the
Bill of Rights, and "privileges and immunities," a narrower subset of
rights incorporated against the states through the Fourteenth
Amendment on the theory that "neither liberty nor justice would exist
if they were sacrificed") (citation omitted).

 C. Access to the Internet is Well Within the Traditional Privilege of
    Citizen Access to Effective Means of Communication, And Therefore
    May Not be Abridged by Government Efforts Impeding Internet Security

Communication via the Internet, however recently it has come about and
however dramatic its improvement over existing means of communication,
fits squarely within the tradition of communications access described
above. Among other things, it transforms the public sidewalk of old
into a national and international forum for discussion and information
exchange. As the Supreme Court held only months ago, the link between
the Internet and the classic privilege of citizenship -- that is,
taking to the streets and parks to express oneself -- is plain:
"Through the use of [Internet] chat rooms," the Court noted, "any
person with a phone line can become a town crier with a voice that
resonates farther than it could from any soapbox. Through the use of
Web pages, mail exploders, and newsgroups, the same individual can
become a pamphleteer." Reno, 117 S. Ct. at 2344 (emphasis added). And,
like the mails, "'the content on the Internet is as diverse as human
thought,'" although, unlike the mails, the Internet offers
distribution "not only [of] traditional print and news services, but
also audio, video, and still images, as well as interactive, real-time
dialogue." Id. (citation omitted).

The Internet also enables a kind of communication that until now was
never so direct or reliable, namely, international communication. The
ability to communicate effectively internationally as well as
nationally is an attribute of national citizenship, because the very
concepts of "domestic" and "foreign," and our status as individual
constituents of a world community, come to us in the first instance by
and through our status as citizens of a nation. See Crandall, 73 U.S.
(6 Wall.) at 44 (citing "authority to regulate commerce with foreign
nations" as exclusively federal, and including within privileges of
U.S. citizenship the "right of free access to [U.S.] sea-ports,
through which all the operations of foreign trade and commerce are
conducted") (emphasis added). International communication via the
Internet has been an especial boon to scientists, who more easily than
ever before can test their ideas against the best scientific minds in
the world. Reams of scientific data that only a few years ago might
have taken days or hours (at best) to convey in useable form across
state and national boundaries are now conveyed in minutes or seconds.
This enhanced flow of information greatly enhances the prospects for
scientific advancement.

The privilege of effective access to the Internet is therefore firmly
rooted in a tradition of access to effective means of communication.
There is much to suggest, moreover, that Internet access should
command even more respect than the right of access to other
communications media. The Internet is perhaps the most democratic
medium yet conceived. As the Supreme Court recognized, access is
inexpensive, space is plentiful, and use by the general population
becomes more pervasive with each passing year. Reno, 117 S. Ct. at
2344. At the same time, unlike traditional media, one person's use of
the medium generally does not restrict another's: "'[c]ommunications
over the Internet do not 'invade' an individual's home or appear on
one's computer screen unbidden. Users seldom encounter content 'by
accident.'" Id. at 2343 (citation omitted). For these reasons, the
Court noted, "the vast democratic fora of the Internet [have not] been
subject to the type of government supervision and regulation that has
attended the broadcast industry." Id. Access to the Internet therefore
must be among privileges and immunities of federal citizenship.

The Regulations at issue in this case trench upon this freedom in a
devastating way. Electronic communications, for all their wonders, are
more vulnerable than any other technology to interception and fraud.
Without strong cryptographic protection, bank transfers, legal
documents, trade secrets, and love letters would go virtually
unguarded from sender to addressee. Messages could be read by
eavesdroppers, changed surreptitiously by criminals intent on fraud,
or faked entirely by malicious attackers. See generally Froomkin, The
Metaphor is the Key: Cryptography, The Clipper Chip, and the
Constitution, 143 Univ. Penn. L. Rev. 709 (1995). Prohibiting export
of encryption technology, as the Regulations do, hinders Internet
communications by making it more difficult to secure these
communications. Further, in order to comply with the Regulations,
American scientists must not: (a) seek feedback from their
international colleagues on their cryptographic ideas, because this
would involve "exporting encryption software"; or (b) help their
international colleagues develop their own ideas, for the same reason.
In essence, the Regulations forbid American citizens from meaningful
involvement in the development and use of cryptographic applications
that are critical to their own secure use of the very best generally
available means of communication.

Ultimately, according to the Government, we are free to exercise our
privilege of access to effective communication methods, but our access
to the means necessary to make this access secure and reliable, we are
told, must be sharply constrained. From any perspective, however, the
EAR abridges the privileges and immunities of American scientists, and
indeed of all U.S. citizens, guaranteed under the Fourteenth
Amendment.

IV. The Regulations Violate the Constitutional Right of Privacy.

 A. Mr. Bernstein's Speech Is Critical to the Privacy Needs of Its
    Potential Recipients.

The importance of cryptography stems largely from its ability to
enhance the privacy of communication. Privacy holds an exalted
position in the First and Fourth Amendments, among other provisions of
the Constitution. The Government's attempt to regulate cryptographic
speech therefore necessarily implicates the would-be recipients'
constitutional privacy interests. Any analysis that ignores the
interests of recipients, and weighs the stated governmental interest
only against Mr. Bernstein's rights, is simply incomplete. This Court
should strike down the Government's attempt to censor
encryption-related speech for its detrimental effect on recipients'
privacy rights.

The content that the Government seeks to censor will be crucial to,
and may even save the lives of, some would-be recipients. As
cryptographic techniques further develop and their benefits are
disseminated, for example, the work of human rights advocates
throughout the world will become less difficult and dangerous. AAAS,
through its efforts in support of international human rights, knows
first-hand of the perils facing these humanitarians and those who
depend on them. Human rights workers are in dire need of powerful
tools to make their communications private and to ensure the integrity
and authenticity of their communications. Without sophisticated
encryption tools, such as described by Mr. Bernstein's communications,
human rights workers (some of whom are United States citizens) in
countries with oppressive governments will continue to be subject to
torture and other reprisals for their communications to and from the
United States and elsewhere. Moreover, out of concern for the
recipients' safety, American human rights workers will curtail their
efforts to reach the oppressed abroad because they will be unable to
ensure the privacy of their communications.

Besides human rights speech and other political speech, the further
development of cryptographic techniques also will likely bring privacy
benefits to intimate speech. As the Internet increasingly becomes a
medium for husbands, wives, and others to communicate intimately,
their privacy will be at risk from governmental and non-governmental
eavesdroppers. If not censored, cryptographic techniques, including
encryption, have the potential to eliminate much of this risk.

 B. The Critical Nature of This Censored Speech Is Significant to the
    Constitutional Analysis

The importance of the information Mr. Bernstein seeks to communicate
is an integral component of the constitutional analysis. In Reno, for
example, the Court was concerned with attempts to reduce the "vast
democratic fora of the Internet" to the lowest common denominator, 117
S.Ct at 2343. Even when the "governmental interest in protecting
children from harmful materials" was at stake, the Court expressed the
same concern: "'[R]egardless of the strength of the government's
interest' in protecting children, '[t]he level of discourse reaching a
mailbox simply cannot be limited to that which would be suitable for a
sandbox.'" Id. at 2346 (citation omitted).

Here, the Government cites the undifferentiated worry that the use of
encryption "by hostile foreign governments and individuals abroad
could jeopardize the national security and foreign policy interests of
the United States." Gov't Br. at 19. The Government's position would
therefore effectively limit the "level of discourse" reaching those in
legitimate (and indeed compelling) need of cryptographic techniques to
that level which we would wish for a hostile, and technologically
insophisticated, foreign government.

The Constitution does not permit the government to hamper privacy
interests using such an unrealistic justification. Rather, the
Consitution protects listeners as well as speakers. See Virginia State
Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S.
748, 756-58 and n.15 (1976) (noting that regulation of speech cannot
be justified solely on the basis that the recipient could receive the
information by some other means, and suggesting that "the recipients'
great need for the information sought to be disseminated" can enhance
a First Amendment claim). The importance of Mr. Bernstein's
information to the potential recipient must weigh heavily in this
Court's analysis.

 C. The Privacy Rights of Recipients Require That the Judgment of the
    District Court Be Affirmed.

The Supreme Court consistently recognizes the constitutional
importance of privacy in communications and association. In NAACP v.
Alabama, 357 U.S. 449 (1958), for example, the State of Alabama sought
to force the NAACP to reveal its membership list despite the very real
possibility that its members would suffer retaliation from private
parties. In reversing the state's decision to allow the invasion of
privacy, the Supreme Court emphasized "the vital relationship between
freedom to associate and privacy in one's associations." Id. at 462.
The Court further pointed out that "[i]nviolability" of privacy in
group association "may in many circumstances be indispensable to
preservation of freedom of association, particularly where a group
espouses dissident beliefs." Id.

The Supreme Court has also noted that "[h]istory abundantly documents
the tendency of Government -- however benevolent and benign its motives
-- to view with suspicion those who most fervently dispute its
policies." United States v. United States Dist. Ct. for E.D. of
Michigan, 407 U.S. 297, 314 (1972). "The danger to political dissent
is acute where the Government attempts to act under so vague a concept
as the power to protect 'domestic security.'" Id. Thus, many in the
United States and elsewhere "understandably" feel a "deep-seated
uneasiness and apprehension that this capability [to wiretap] will be
used to intrude upon cherished privacy of law-abiding citizens." Id.
at 312. If not censored, cryptographic applications have the potential
to alleviate this danger and to foster political speech both here and
abroad.

Although specific circumstances can arise in which the Government is
justified in using technology to eavesdrop on private communications
through wiretapping or other means, this does not justify the
Government's generally depriving law-abiding people of the opportunity
to learn how to make their communications more secure. Indeed, the
same decisions that recognize the limited privilege of the Government
to wiretap tread cautiously around the potential for abuse and
strongly suggest that the privilege should not be expanded. See United
States Dist. Court for E.D. of Michigan, 407 U.S. at 312 (explaining
that, "even when employed with restraint and under judicial
supervision," "employment by Government of electronic surveillance
[was not] a welcome development").

Today, the Internet offers the potential for maintaining heretofore
unachievable privacy in long-distance communication. Mr. Bernstein's
work furthers this goal, and concomitantly the "[e]ffective advocacy
of both public and private points of view, particularly controversial
ones." See NAACP, 357 U.S. at 460 (explaining the importance of
associational rights to such effective advocacy).

"Experience should teach us to be most on our guard to protect liberty
when the Government's purposes are beneficent." Olmstead v. United
States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). "It is
now well established that the Constitution protects the right to
receive information and ideas." And "that right takes on an added
dimension" where privacy is at stake. Stanley v. Georgia, 394 U.S.
557, 564 (1969). Thus, even putting aside Mr. Bernstein's
constitutional right to speak, lecture, and consult his peers freely,
the additional privacy rights of his would-be listeners mandate that
the District Court's judgment be affirmed.


CONCLUSION

The decision of the District Court should be affirmed.


Respectfully submitted,

/s/ Richard D. Marks
Richard D. Marks
John M. Faust
VINSON & ELKINS L.L.P.
1455 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-1088
(202) 639-6725

John R. Liebman                              Thomas S. Leatherbury
Richard S. Berger                            Scott Breedlove
TUTTLE & TAYLOR                              VINSON & ELKINS L.L.P.
355 South Grand Avenue, 40th Floor           3700 Trammell Crow Center
Los Angeles, CA 90071-3102                   2001 Ross Avenue
(213) 683-0663                               Dallas, Texas 75201-2975
					     (214) 220-7792





APPENDIX CERTIFICATE OF COMPLIANCE

Pursuant to this Court's Rule 32 (e)(4), I certify that: (1) this
brief is double spaced; (2) the brief is printed using a 14-point
proportional Times New Roman font; and (3) the word processing program
used to prepare the brief reports that the brief is 13,316 words long.

/s/ Richard D. Marks
Richard D. Marks