IN THE UNITED STATES COURT OF APPEALS
			 FOR THE NINTH CIRCUIT

DANIEL J. BERNSTEIN         	   ) 
			    	   )
	   Plaintiff/Appellee,     )
				   )
v.              		   )	No. 97-16686
				   )
UNITED STATES DEPARTMENT OF 	   )	C-95-0582 MHP
JUSTICE, et al.,            	   )	(N.D. California,
				   )	   San Francisco)
	   Defendants/Appellants   )
				   )

				--o0o--

BRIEF FOR THE APPELLEE

				--o0o--


CINDY A. COHN, ESQ.; SBN 145997
McGLASHAN & SARRAIL
Professional Corporation
177 Bovet Road, Sixth Floor
San Mateo, CA 94402
Tel: (650) 341-2585
Fax: (650) 341-1395

LEE TIEN, ESQ.; SBN 148216
1542 Curtis Street
Berkeley, CA 94702
Tel: (510) 525-0817

JAMES WHEATON; SBN 115230
ELIZABETH PRITZKER; SBN 146267
FIRST AMENDMENT PROJECT
1736 Franklin, 8th Floor
Oakland, CA 94612
Tel: (510) 208-7744

ROBERT CORN-REVERE, ESQ.
HOGAN & HARTSON, L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Tel: (202) 637-5600

M. EDWARD ROSS, ESQ.; SBN 148216
STEEFEL, LEVITT & WEISS
A Professional Corporation
One Embarcadero Center, 30th Floor
San Francisco, CA 94111
Tel: (415) 788-0900

DEAN MOREHOUS; SBN 111841
SHERI A. BYRNE, SBN to be assigned
THELEN, MARIN, JOHNSON & BRIDGES
2 Embarcadero Center, 17th Floor
San Francisco, CA 94111
Tel: (415) 392-6320

Attorneys for Appellee
DANIEL J. BERNSTEIN




TABLE OF CONTENTS


I.	INTRODUCTION	1

II.	ISSUES ON APPEAL	4

III.	STATEMENT OF THE CASE	5

	A.	Background	5

	B.	The Cryptography Regulatory Scheme	8

		1.	The Licensing Process	9

		2.	The Cryptography Regulations Differ Significantly
			from the General EAR Licensing Process	11

	C.	How the Cryptography Regulations Were Applied to
		Professor Bernstein	13

IV.	SUMMARY OF ARGUMENT	16

V.	ARGUMENT	18

	A.	THE EXPORT CONTROLS ON CRYPTOGRAPHIC
		SPEECH ARE AN UNCONSTITUTIONAL PRIOR
		RESTRAINT	18

		1.	Prior Restraint Analysis Applies to Discretionary
			Licensing Regulations That Target  Speech, Regardless
			of Content Neutrality	19

		2.	The Cryptography Regulations Regulate Expressive
			Activity	24

			a.	The Regulations Restrict Communications
				Written In Programming Languages	26

			b.	The Regulations Restrict Internet
				Publication	32

			c.	The Regulations Restrict the Ability to Encrypt
				Speech	36

		3.	Appellants Have Not Shown That The Publication of
			Cryptography Would Cause Direct, Immediate and
			Irreparable Harm to National Security	39

	B.	THE EXPORT CONTROLS ON CRYPTOGRAPHIC
		SPEECH ARE INVALID EVEN UNDER THE REDUCED
		FIRST AMENDMENT SCRUTINY THE GOVERNMENT
		ADVOCATES	45

		1.	The Cryptography Scheme Does Not Further the
			Government's Asserted Interest	45

			a.	The Printed Matter Exemption Undermines the
				Claim that the Cryptography Scheme Serves the
				Government's Interest	46

			b.	Encryption Software is Widely Available
				Abroad	48

		2.	The Regulations Restrict Too Much Speech 	49

	C.	THE DISTRICT COURT JUDGMENT IS PROPER	50

		1.	The Declaratory Relief Granted is Appropriate  	50

		2.	The Injunction Is Appropriately Tailored To The
			Circumstances Of This Case	54

VI.      CONCLUSION	58




TABLE OF AUTHORITIES

Cases					Page

ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996),  aff'd, Reno v. ACLU, 117
S.Ct 2329 (1997)		6, 32, 48

American Booksellers Asso. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd
mem., 475 U.S. 1001, reh'g denied, 475 U.S. 1132 (1986) 			43

Bartels v. State of Iowa, 262 U.S. 404 (1923)		37

Bates v. City of Little Rock, 361 U.S. 516 (1960)		37

Bernstein v. United States, 922 F.Supp. 1426 (N.D. Cal. 1996)		8, 15,
41 (Bernstein I)

Bernstein v. United States, 945 F.Supp. 1279 (N.D. Cal. 1996) (Bernstein
II)		3,8,30,41,47

Bernstein v. Department of State, slip op., (Bernstein
III)					19,20,23,25,41,47,48

Brandenburg v. Ohio, 395 U.S. 444 (1969)		44

Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988)		42

Burson v. Freeman, 504 U.S. 191 (1992) 		21

Bush v. Lucas, 462 U.S. 367 (1983)		25

Cohen v. California, 403 U.S. 15 (1971)		32

Elrod v. Burns, 427 U.S. 347 (1976)		55

Florida Star v. B.J.F. , 491 U.S. 524 (1989)		44,46

Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)		30

Freedman v. Maryland, 380 U.S. 51 (1965) 		17,20,31

FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990)		20,23

Gordon & Breach Science Publishers v. American Institute of Physics, 859 F.
Supp. 1521 (S.D.N.Y. 1994) 		56

Gottschalk v. Benson, 409 U.S. 63 (1972) 		13

Haig v. Agee, 453 U.S. 280 (1981) 		43

Harper & Row, Publishers, Inc v. Nation Enterprises, 471 U.S. 539
(1985)			27

Herceg v. Hustler Magazine, 814 F.2d 1017 (5th Cir. 1987), cert. denied, 485
U.S. 959 (1988)		44

ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F. Supp. 1310 (N.D. Ill.
1990)		51

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)		31

Katz v. United States, 389 U.S. 347 (1967)		39

Keyishian v. Board of Regents, 385 U.S. 589 (1967)		25

Ladue v. Gilleo, 512 U.S. 43 (1994)		47

Lakewood v. Plain Dealer Publishing. Co., 486 U.S. 750
(1988)		19,23,24,36

Lamont v. Postmaster General, 381 U.S. 301 (1965)		37

McIntyre v. Ohio Elections Commission, 115 S. Ct. 1511 (1995)		37,38

Meyer v. Nebraska, 262 U.S. 390 (1923)		37

Milena Ship Management Co. v. Newcomb, 804 F.Supp. 846 (E.D. La. 1992),
aff'd, 995 F.2d 620 (5th Cir. 1993), cert denied, 510 U.S. 1071
(1994)		11

Minneapolis Star & Tribune Co. v. Commissioner of Revenue, 460 U.S. 575
(1983)		29

Mutual Film Corp. v. Industrial Comm'n of Ohio, 236 U.S. 230
(1915)			31

NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). 		44

NAACP ex rel. Patterson v. Alabama, 357 U.S. 449 (1958)		37

New York v. Ferber, 458 U.S. 747 (1982)		31

Olmstead v. United States, 277 U.S. 438, 464 (1928)		38,39

Near v. Minnesota, 283 U.S. 697		43

New York Times Co. v. United States, 403 U.S. 713 (1971)		39,40,41

Nordyke v. Santa Clara County, 110 F.3d 707 (9th Cir. 1997)		46

Nuclear Pacific, Inc. v. United States Department of Commerce, No. C84-49R
(W.D. Wa. June 8, 1984)		10

Reno v. ACLU, 117 S.Ct 2329 (1997) 		1,4,33,34,35,49,58

Rice v. Paladin Enterprises, Inc., 940 F.Supp. 836 (D. Md.), appeal
docketed, No 96-2412 (4th Cir. 1996)		45

Schneider v. State, 308 U.S. 147 (1939)		36

Sega Enterprises, Ltd v. Accolade, Inc., 977 F.3d 1510 (9th Cir.
1993).			27,51

Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board,
502 U.S. 105  (1991) 		21

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)		49

Talley v. State of California, 362 U.S. 60 (1960)		5,37

Turner Broadcasting System v. FCC, 512 U.S. 622 (1994)		45

United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir.
1978)			53,54

United States v. Monsanto, 491 U.S. 600 (1989)		52

United States v. National Treasury Employees Union, 513 U.S. 454
(1995)		50

United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948)		31

United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis.), reh'g
denied, 486 F. Supp. 5 (W.D. Wis.), dismissed, 610 F.2d 819 (7th Cir. 1979)
		46

United States v. Robel, 389 U.S. 258 (1967)		40

United States v. U.S. District Court, 858 F.2d 534 (9th Cir. 1988)		25

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425
U.S. 748 (1976)		56

West Virginia State Board of Education v. Barnette, 319 U.S. 624
(1943)		37

Wooley v. Maynard, 430 U.S. 705 (1977)		37



Statutes and Regulations		Page

ECCN 5D002		2

ECCN 5E002		2

15 C.F.R. Sect. 6.4		10

15 C.F.R. Sect. 732.2(b)		12

15 C.F.R. Sect. 732.2(d)		12

15 C.F.R. Part 734 (Supplement No. 1)		12

15 C.F.R. Sect. 734.2(b)(1)		18

15 C.F.R. Sect. 734.2(b)(2)		11,18

15 C.F.R. Sect. 734.2(b)(3)		11,12

15 C.F.R. Sect. 734.3(b)(3)(ii)		9,12

15 C.F.R. Sect. 734.3(b)(3)(iii)		12

15 C.F.R. Sect. 734.2(b)(9)(B)(ii)		12,18

15 C.F.R. Sect. 734.4		12

15 C.F.R. Sect. 734.7(c)		12

15 C.F.R. Sect. 734.8(a)		12

15 C.F.R. Sect. 734.8		12

15 C.F.R. Sect. 734.9		12

15 C.F.R. Sect. 742.15		41

15 C.F.R. Sect. 742.15(b)(4)(ii)		10

15 C.F.R. Sect. 744.9		2,54

15 C.F.R. Sect. 744.9(a)		9,53

15 C.F.R. Sect. 750.4(a)		10

15 C.F.R. Sect. 756.1(a)		10

15 C.F.R. Sect. 756.2(c)(1)		10

15 C.F.R. Sect. 756.2(c)(2)		10

15 C.F.R. Sect. 756.2(d)		10

15 C.F.R. Sect. 764.3		10

15 C.F.R. Sect. 768		12

15 C.F.R. Sect. 768.1(b)		12

15 C.F.R. Sect. 772		9,53,54

22 C.F.R. Sect. 120.1-130.17		8

22 C.F.R. Sect. 121.01		36

17 U.S.C. Sect. 101, 117		27

18 U.S.C. Sect. 798		36

22 U.S.C. Sect. 2778		8

28 U.S.C. Sect. 2201		50

50 U.S.C. App. Sect. 2412 		10

61 Fed. Reg. 68575		30,48

61 Fed. Reg. 68585 (to be codified as 15 C.F.R. Pt. 772)		54



Other Materials		Page


Abelson & Sussman, Structure and Interpretation of Computer Programs,
preface, page xv. (1985)		27

Anthony L. Clapes, Confessions of an Amicus Curae:  Technophobia, Law, and
Creativity in the Digital Arts, 19 Dayton L. Rev. 903 (1994)	51

Alan Pell Crawford, Founding Fathers' Forum, Wall St. J.,
Feb. 2, 1995 at A16	5

Encryption Foreign Availability:  How Much Evidence Do You Need? Export
Control News, July 31, 1994		48

Executive Order No. 13,026		9

FBI Director Raises the Ante:  Government Wants Mandatory Key Recovery, 2
Electronic Information Policy & Law Report 927 (Sept. 12, 1997)		8

Final Report of the National Commission on New Technological Uses of
Copyrighted Works (CONTU Report) (July 31, 1978)		26

GAO, Communications Privacy:  Federal Policy and Actions, GAO/OSI-94-2, Nov.
4, 1993 		48

The Government's Classification of Private Ideas:  Hearings Before a
Subcomm. of the House Comm. on Gov't Operations, 96th Cong. 2d Sess., H.
Rep. No. 96-1540 (1980) 		7

David Kahn, The Codebreakers: The Story of Secret Writing (1973, abridged
version)		5

Donald E. Knuth, Literate Programming (1992)		28

Senator Trent Lott, Cong. Rec.  S10879-S10881 (October 21, 1997)	8

National Academy of Sciences, Scientific Communication and National Security
(1982)		6

National Research Council, Cryptography's Role in Securing the Information
Society (1996)  ("NRC Report")		3,13,15

M. Christina Ramirez, The Balance of Interests Between National Security
Controls and First Amendment Interests in Academic Freedom, 13 J.C. & U.L.
179 (Fall 1986)		7

Bruce Schneier, E-Mail Security (1995)		6

Allen M. Shinn, Jr., The First Amendment and the Export Laws: Free Speech on
Scientific and Technical Matters, 58 Geo. Wash. L. Rev. 368 (January
1990)		7

John Cary Sims, Triangulating the Boundaries of the Pentagon Papers, 2 Wm. &
Mary Bill of Rights J. 341 (1993)		41

Statement of Vice Admiral J. M. McConnell, Hearing on The Administration's
Clipper Chip Key Escrow Encryption Program, S. Hrg. 103-1067, 103d Cong., 2d
Sess. (May 3, 1994)			42

Ralph E. Weber, Masked Dispatches:  Cryptograms and Cryptology in American
History (Center for Cryptographic History, 1993)		5

Alfred C. Yen, A First Amendment Perspective on the Idea/Expression
Dichotomy and Copyright in a Work's Total Concept and Feel, 38 Emory L.J.
393 (1989)		27


I.	INTRODUCTION

The Supreme Court calls the Internet a "unique and wholly new medium" that
"enables tens of millions of people to communicate with one another and to
access vast amounts of information from around the world. . . . At any given
time, tens of thousands of users are engaging in conversations on a huge
range of subjects. . . .The content on the Internet is as diverse as human
thought."  Reno v. ACLU, 117 S. Ct. 2329, 2334-35 (1997) (citations and
internal quotations omitted). ("Reno")

But from this diversity of content and speakers, the government has chosen
one subject--cryptography, the science of speech privacy--and one group of
speakers--U.S. persons--for exclusion from "the most participatory form of
mass speech yet developed." Reno, 117 S. Ct. at 2340 (citations omitted).

Plaintiff Daniel J. Bernstein is a professor in the Department of
Mathematics, Statistics and Computer Science at the University of Illinois
at Chicago.1  Writing, analyzing and publishing cryptographic algorithms and
software is integral to his academic research and teaching.  It is also
plainly protected speech.  Software in the form of source code was designed
to be read and understood by humans and is a critical tool in teaching on
subjects involving computers.  It is as difficult to develop the science of
cryptography without reading software as it would be to develop poetry
without reading poems or the theory of relativity without reading
mathematical equations.

The undisputed impact of Appellants' cryptography regulations, however, is
to subject Professor Bernstein and others to criminal prosecution for
publishing their work on the Internet without receiving an "export"
license.2 The Government asserts that this restraint on scientific work is
necessary to prevent foreign intelligence targets from getting cryptographic
information which they might then use to make it more difficult for the
Government to eavesdrop on their communication.  But the regulations are so
clumsily written that they do not even achieve this end.  For even while
they license academics like Professor Bernstein's electronic publication,
they do not license any print publication of cryptographic information. As a
blue-ribbon commission assigned by Congress to examine the cryptography
regulations3 noted, the academic community greeted the government's rules
with the comment:  "They think terrorists can't type?"  Bernstein  v.
Department of State, 945 F.  Supp. 1279, 1296, n.10 ("Bernstein II")

Even worse, the Government has known for 20 years that these regulations are
an unconstitutional prior restraint.  The Justice Department's Office of
Legal Counsel ("OLC") in 1978 clearly and succinctly outlined the basic
failure to provide limitations on agency discretion and procedural
protections that plague the scheme today.4 The District Court's reasoning
below, for all practical purposes, adopts the OLC's reasoning.

At bottom, these regulations create a highly discretionary licensing scheme
aimed at an entire subject area of science--an obvious prior restraint.  The
government's justification hangs in the air, unsupported by evidence and
undercut by its own exemptions.  As the Supreme Court said in Reno, "[t]he
interest in encouraging freedom of expression in a democratic society
outweighs any theoretical but unproven benefit of censorship." Reno, 117 S.
Ct. at 2351.

II.	ISSUES ON APPEAL

The issues presented on appeal are whether the District Court correctly held
that the cryptography regulations are a facially unconstitutional prior
restraint on speech and whether the relief granted was proper.

III.	STATEMENT OF THE CASE

A.	BACKGROUND

Cryptography has been used in communication for more than 3,000 years, and
has a long and prestigious history of use in the United States.5  Colonial
patriots frequently used cryptography.6  Exchanging views on politics,
philosophy and constitutional theory, Thomas Jefferson and James Madison
corresponded in code "so thoughts they exchanged would not fall into the
hands of political foes."7  In sharp contrast to the government's position
in this case, the American Founding Fathers viewed secret writing as an
essential instrument for protecting critical information not only in
wartime, but in peacetime, as well.8  Today, as a branch of applied
mathematics, cryptography is still used to protect the privacy of messages
and stored information.  Appellants' Excerpts of Record ("ER") 300.  As in
the Framers' times, it is a science that aids interpersonal communication.
AER 8-9; 78-9; 139-40; 146-7; 154-6; 180-9; 191-4. Without cryptography, for
example, electronic mail is like a postcard, open to view while the message
is in transit.  See ACLU v. Reno, 929 F. Supp. 824, 834 (E.D. Pa. 1996)
(finding 23) aff'd Reno.  With cryptography, people can put messages into
electronic "envelopes."  See Bruce Schneier, E-Mail Security (1995).

The uses of cryptography today include protecting the privacy of
attorney/client correspondence, financial transactions, political
discussions, medical records, human rights reports and cellular telephone
conversations. Continued development of cryptography may enable the Internet
to offer private communication among billions of people worldwide.  AER
78-80; 139-40; 189; 192-4; 196.

Despite cryptography's growing importance to all who communicate
electronically, the Government has long used export restrictions to restrain
its development by private citizens, including academics.9  In the
mid-1980s, for example, a number of scientific meetings were disrupted by
National Security Agency threats of prosecution for violation of export
control laws.10 A congressional study of the NSA's efforts during this
period concluded that "[c]ontrols over the export of unclassified technical
data pose a constant threat to [private use and development of]
cryptography."11

Censorship of academic speech about cryptography has continued.  The record
below contains several recent examples in which the administrators of the
export control regime informed scholars that licenses are required for
academic activities involving cryptography (AER 175-6) and declined to
provide clear guidance when asked about the status of a class project.12
(AER 151-3). When MIT Press asked if it could publish an academic book
containing cryptographic source code, the Government opened a case file,
delayed for months, then ultimately refused to respond.  AER 331-335.  Most
recently, the FBI and others have advocated additional statutory domestic
controls over the distribution and use of cryptography.13

It is in this context that the District Court found that the cryptography
regulations' prepublication licensing requirements are facially
unconstitutional.

B.	The Cryptography Regulatory Scheme

When this case began, all cryptographic speech export was controlled by the
State Department under the ITAR scheme.14  It was under ITAR that Appellants
made the initial determinations about Professor Bernstein's request to
publish and the District Court decided Bernstein I15 and Bernstein II.

On December 30, 1996, primary licensing authority for nonmilitary
cryptography was shifted to the Commerce Department.16  Appellants have
admitted that Professor Bernstein would need a license under the new
regulations, stating: "the parties' dispute as to licensing procedures for
Professor Bernstein's encryption source code, and as to technical data,
would continue."  AER at 477-84.

Under both the cryptography regulations and the previous ITAR scheme, a
person wishing to publish encryption software and related "technology"17
must apply for and be granted a license prior to electronic publication,
because such publication is defined as "export."  Even disclosing technology
to a foreign person within the United States is defined as an export. 15
C.F.R.  734.2(b)(3)(ii).  In addition, a person must also get a license to
provide "technical assistance" about encryption to a foreign person.  15
C.F.R. Sect.744.9(a).

1.	The Licensing Process

The cryptography license application process requires that a person submit
the speech to be communicated for review by agency officials.  Those
officials read and evaluate the submission and then decide whether to permit
or deny a license, or that no license is needed.  Importantly, under the
cryptography regulations, license decisions are made "on a case by case
basis."  15 C.F.R. Sect. 742.15(b)(4)(ii) and there are no substantive
standards for agency decision making.  Penalties for "exporting" controlled
items without a license include up to $250,000 in fines and up to ten years
in prison.  15 C.F.R. Sect. 764.3 & 6.4.

Within 90 days, initial license applications are decided by the Commerce
Department or referred to the President. 15 C.F.R. Sect. 750.4(a).  If an
application is referred to the President, he or she has no deadline for
decision.  If a license is denied, an appeal can be taken within Commerce.
15 C.F.R. Sect. 756.1(a).  There is no deadline for Commerce to decide an
appeal, however; appeals need only to be decided "within a reasonable time."
15 C.F.R. Sect. 756.2(c)(1).  During the internal appeals process, the
licensing denial remains in effect, and the work cannot be published or
otherwise "exported."  15 C.F.R. Sect. 756.2(d). Judicial review of
licensing decisions is expressly precluded under the EAA and EAR. 50 U.S.C.
App. Sect. 2412 and 15 C.F.R. Sect. 756.2(c)(2).  While IEEPA does not
preclude judicial review,18 it fails to require: (1) that such review be
prompt or (2) that the government bring the action and bear the burden of
proof.

2.	The Cryptography Regulations Differ Significantly from the General EAR
Licensing Process

The cryptography regulations differ from the broader EAR regulations in
several ways, demonstrating that the topic of encryption is singled out for
more restrictive treatment than other scientific topics subject to the EAR.

First, "export" is defined separately  for speech about cryptography
expressed in a programming language than for any other kind of speech
licensed by the EAR.  For all other speech, "export" is defined as
communication to anyone in a foreign country or to a foreign person in the
United States.  15 C.F.R. Sect. 734.2(b)(2),(3).  For speech in the form of
encryption software, however, the term "export" expressly includes Internet
publication:

   downloading, or causing the downloading of, such software to locations
   (including electronic bulletin boards, Internet file transfer protocol,
   and World Wide Web sites) outside the U.S., or making such software
   available for transfer outside the United States, over wire, cable,
   radio, electromagnetic, photo optical, photoelectric or other comparable
   communications facilities accessible to persons outside the United
   States . . . unless the person making the software available takes
   precautions adequate to prevent unauthorized transfer of such code
   outside the United States.

15 C.F.R. Sect. 734.2(b)(9)(B)(ii).  No other speech, regardless of its
subject matter or "capability" is so heavily burdened.

Second, the First-Amendment-sensitive exceptions applicable to all other
software  are inapplicable to encryption software.  These exceptions allow
"export" without a license of software that results from "fundamental
research," (15 C.F.R. 734.3(b)(3)(ii) and 734.8); that is "educational" (15
C.F.R. 734.3(b)(3) (iii) and 734.9), and that is "publicly available."  In
addition, the EAR excludes from licensing items that are already available
from foreign sources (15 C.F.R. Sect. 768) and items that have de minimis
U.S. content (15 C.F.R. Sect. 734.4).  None of these exceptions are
applicable to cryptography.19  These extra restrictions create some absurd
results.  For instance, a person needs a license to publish software on a
U.S. Internet site even if it is already freely available from an Australian
site.20

C.	How the Cryptography Regulations Were Applied to Professor Bernstein

This case fundamentally presents a facial challenge.  The facts of
Appellants' treatment of Professor Bernstein contained in the record,
however, illustrate the unbridled administrative discretion conferred by the
export regulations.  They also show how that discretion has been used in
erratic, inconsistent and plainly wrong ways to restrict the free flow of
information about the subject of cryptography by scientists and academics.

As a student, Professor Bernstein developed an encryption algorithm21 which
he named "Snuffle."  He then described his algorithm in two ways:  in a
scientific Paper containing both English and mathematical equations
(hereinafter the "Paper") (AER 3) and in a computer program in the "C"
programming language (hereinafter "Snuffle.c") (AER 4 & 5).  Later, he wrote
instructions in English explaining how to use Snuffle to encrypt and
instructions in English for programming a computer to use Snuffle
(collectively referred to hereinafter as "Instructions").22  Like most
scientists, and especially those who live in the "publish or perish"
environment of academia, Professor Bernstein sought to present his idea to
the worldwide academic and scientific community using the normal channels of
discussion and publication.

Vaguely aware of Appellants' restrictions on cryptography, Professor
Bernstein asked the State Department (which administered the export
regulations at that time) whether he needed a license to publish his work,
initially consisting of Snuffle.c and the Paper.  AER 1-5, 18-19.  The State
Department responded by indicating that Professor Bernstein did need a
license.  AER 20.

Professor Bernstein then engaged in a protracted, frustrating and ultimately
unsuccessful attempt to learn how Appellants interpreted their regulations
and whether the determination extended to both the source code and his
scientific Paper expressions of the Snuffle algorithm.23  AER 10-15,21-41.
At one point, for example, he was told he could be prosecuted for placing
his work into a public library.  AER 26. Professor Bernstein appealed the
licensing determination on September 22, 1993.  AER 14 and 21. He never
received a response.  AER 14-15.  More than two years later and after this
suit was filed, however, Appellants' issued a "clarification" indicating
that the scientific Paper was not controlled. AER 14-15, 42-44.24 However,
Snuffle.c and the Instructions, which he had submitted later, remain
restrained.25  AER 479.

Appellee's frustrating experience is by no means an isolated instance. AER
147-55; 175-6; 141-3; 184-5; 500-6 and NRC Report 4-14 to 4-18, 4- 30 to
4-33 and 4-47.26

IV.	SUMMARY OF ARGUMENT

The Government has prevented Professor Bernstein and many other academics
and scientists from effectively teaching and publishing about the
mathematical field of cryptography.  Writing and analyzing cryptographic
algorithms and software is integral to scientific and academic work on this
topic.  Such software is a creative achievement by its author, is often read
and evaluated by his colleagues and students, and so easily falls within the
ambit of the protections the Supreme Court has long accorded speech in its
many forms.

The fact that Professor Bernstein and others wish to publish on the Internet
makes no difference to the analysis of this situation.  The Supreme Court
has recently recognized that the Internet is a fully protected medium for
First Amendment expression.

The District Court, agreeing with a 1978 OLC analysis of the regulations,
held that they are an illegal prior restraint.  That decision was clearly
correct: the regulations have more than a close enough nexus to speech to
pose risk of censorship, they directly restrict scientific speech in a
particular subject area of applied mathematics, specifically prevent such
speech on the Internet, and restrict private communication.  Further, the
regulations grant unfettered discretion to the bureaucrats who implement it,
and lack the procedural safeguards required by Freedman v. Maryland, 380
U.S. 51 (1965).  The lack of narrow, definite and objective standards causes
self-censorship and permits unreviewable content-based discrimination, both
of which are demonstrated in the record.

The Government misapplies the First Amendment framework by presenting
content-neutrality as the necessary threshold question for this review. This
argument is flawed because prior restraints are invalid even when
content-neutral, and, in any event, the cryptography scheme is
content-based.  Further, the government has failed to prove that its
interest in national security is furthered in any material way by the
licensing scheme, and indeed its assertions here are undermined by both
common sense and its own Congressional testimony on the subject.

Moreover, even under the more forgiving standard that governs certain
content-neutral restrictions, the cryptography scheme is defective.  It
reaches overbroadly and is fatally imprecise.  Finally, the District Court
granted the proper scope of relief; its decision should be affirmed in its
entirety.

V.	ARGUMENT

A.	THE EXPORT CONTROLS ON CRYPTOGRAPHIC SPEECH ARE AN UNCONSTITUTIONAL
PRIOR RESTRAINT 27

Under the cryptography regulations, Professor Bernstein must not take or
send Snuffle 5.0 abroad in any manner, except for personal use.  See 15
C.F.R. Sect. 734.2(b)(1).  He must not present Snuffle 5.0 at a conference
abroad or communicate it privately to an overseas colleague (even a U.S.
citizen). See 15 C.F.R. Sect. 734.2(b)(2).  He must not present his work or
discuss its merits in the Internet newsgroup "sci.crypt" (see 15 C.F.R.
Sect. 734.2(b)(9)(B)(ii)), or publish his ideas in an electronic scientific
journal such as the American Association for the Advancement of Science
("AAAS") journal Science.  Id.  In short, Professor Bernstein may not engage
in forms of scholarly dialogue that have become commonplace in virtually
every other field of academic pursuit.  Unless, of course, he obtains the
government's permission first.  This is prior restraint in its classic form.

1.	Prior Restraint Analysis Applies to Discretionary Licensing
Regulations That Target Speech, Regardless of Content Neutrality

The fundamental issue in this case is whether the government's licensing
scheme over encryption software, related technology and technical assistance
is subject to a facial challenge as an unconstitutional prior restraint.  As
correctly determined by the District Court and as conceded by the Government
on appeal, the appropriate test for resolving that issue is Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750 (1988).  Appellants' Brief at 39.
The relevant question is whether the cryptography licensing scheme has a
"close enough nexus to expression, or to conduct commonly associated with
expression, to pose a real and substantial threat of the identified
censorship risks."  Id.  As demonstrated below, the answer is yes. The
cryptography scheme is a direct restriction on speech, whereas the Supreme
Court in Lakewood found a "close enough nexus" when regulations merely
controlled the vending machines used to distribute speech.

A licensing statute that restricts speech and places unbridled discretion in
the hands of the administering government agency is a prior restraint.  See
Lakewood, 486 U.S. at 757.  As the District Court correctly observed, the
cryptography regulations impose no limits on agency discretion. Bernstein
III, ER 570. They are therefore a prior restraint and subject to a facial
challenge.

The next step of the analysis, also correctly determined by the District
Court, is simply to apply the factors governing prior restraints articulated
in Freedman v. Maryland:  1) whether the agency is required to make
expedited decisions; 2) whether expeditious judicial review is available;
and 3) whether the censor bears the burden of going to court and has the
burden of proof. See, e.g., Freedman, 380 U.S. at 58-60.

The cryptography scheme clearly fails to satisfy even one of these
requirements, and Appellants do not defend the rules on this basis.  The
District Court correctly determined that the cryptography regulations fail
the Freedman test and concluded that it need look no further.  See Bernstein
III, ER 569 and 578, citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 236 n.3
(1990) ("In light of our conclusion that the licensing requirement is
unconstitutional because it lacks essential procedural safeguards . . . we
do not reach [the other First Amendment challenges to the ordinance's
licensing scheme]").  If this Court agrees that Freedman and its progeny
establish the relevant tests in this case, it may make short work of the
government's appeal, for Appellants essentially have admitted that the
cryptography scheme cannot survive rigorous constitutional scrutiny.

The Government attempts to bypass this straightforward analytical framework
by contending that "content - neutral regulations are constitutional as long
as they serve substantial interests that are unrelated to the suppression of
speech and they do not incidentally burden substantially more speech than
necessary."  Appellants Brief at 30. The necessary but unstated premise to
the Government's argument is that if the regulations at issue pass the
"content neutrality" and "unrelated to the suppression of speech" tests,
then no prior restraint facial challenge to the regulations will lie. Beyond
the fact that the government is advocating the wrong First Amendment test,
there are two major problems with its analysis:  the cryptography
regulations are not content-neutral, and even if they were, the Freedman
requirements still apply.

The cryptography regulations on their face target speech about the topic of
cryptography.28 "[T]he First Amendment's hostility to content based
regulation extends not only to a restriction on a particular viewpoint, but
also to a prohibition of public discussion of an entire topic."  Burson v.
Freeman, 504 U.S. 191, 197 (1992) (citation and footnote omitted); accord,
Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board,
502 U.S. 105, 116 (1983) (statute restricting speech about crime is content
based).  As explained above, the exemptions designed to protect First
Amendment speech that apply to all other software are specifically do not
apply to software with cryptographic content.  These exemptions include
publicly available software, foreign available software, educational
software and software resulting from fundamental research.  See supra at
12-3. Additionally, cryptography is subject to a special licensing
requirement for "technical assistance" which has no counterpart elsewhere in
the EAR scheme.  15 C.F.R. Sect. 744.9(a).  Clearly the cryptography scheme
is not neutral on the subject of cryptography.

The Government's repeated assertion that the District Court found that the
"licensing requirements are content-neutral regulations that are not aimed
at the suppression of speech" (Appellants' Brief at 17 & 36) is flatly
wrong.  The District Court found that the regulations were aimed at the
suppression of speech.  Bernstein III, ER 567.  ("The encryption regulations
. . . [are] specifically directed at speech protected by the First
Amendment.").

What the District Court found, and what the government fails to acknowledge,
is that the question of content neutrality is irrelevant to prior restraint
analysis.  See Bernstein III, ER 569 ("thus, without deciding whether the
regulations are content based, the court turns to the procedural safeguards
afforded under the encryption regulations"). The District Court simply
applied settled law that even neutral licensing schemes are unconstitutional
prior restraints if they give government officials discretionary power to
burden speech. Lakewood, 486 U.S. at 759; see also FW/PBS, 493 U.S. at 229
(plurality opinion) (finding that under ordinance city did not pass judgment
on content of protected speech, but had indefinite amount of time to issue
license).

That Appellants' justification may be content-neutral does not address the
special concerns of licensing schemes: discriminatory application. The
newsrack permitting scheme in Lakewood was neither facially content-based
nor justified in terms of content, but it could be applied discriminatorily.
Lakewood 486 U.S. at 757-759 (dangers of self-censorship, censorship,
unreviewability, and irretrievable loss of speech opportunities are produced
by "lack of express standards").  The record evidence of Appellants'
treatment of Professor Bernstein, Mr. Miller, MIT and many others
demonstrates that such dangers have been realized in the Appellants'
application of the cryptography regulations.  See supra at 7; AER 81-3;
84-102; 138-43; 144-72; 173-78; 179-89; 191-202; 333-40; 490-99; 500-18.

2.	The Cryptography Regulations Regulate Expressive Activity

The Government does not deny that Professor Bernstein needs a government
license.  It very frankly admits that "source code can be understood by
persons, such as computer scientists and programmers."29  Thus it admits
that the cryptography regulations directly regulate the "expressive
activities" of  computer programmers, scientists, academics and others.
Appellants' Brief at 41.  It admits that the regulations restrict Professor
Bernstein's expressive activities "even if his own purpose is merely to
convey some theory implicit in the software."30  These admissions alone
demonstrate that the scheme has a "close enough nexus to expression" to
trigger facial prior restraint review under Lakewood.

The government's defense of the cryptography scheme is premised on the
improper (and unproven) factual assumption that the electronic publication
of encryption source code and related information is very rarely, "if ever"
(Appellants' Brief. 28) done for expressive purposes.  Not only is this
assertion undermined by the government's own admissions, the error was
exposed by the court below.  The District Court found that "[b]y the very
terms of the encryption regulations, the most common expressive activities
of scholars - teaching a class, publishing their ideas, speaking at
conferences, or writing colleagues over the Internet - are subject to a
prior restraint by the export controls when they involve cryptographic
source code or computer programs."  Bernstein III, ER 566.  The District
Court further found that the cryptography regulations "threaten to undermine
the essential features of scientific freedom and the open exchange of
information that are generally acknowledged as critical to innovation in
science and technology." Id. at 567 (quoting AAAS statement).  Academic
freedom is "a special concern of the First Amendment."31

Thus, it is not accurate to characterize the export controls as regulating
"conduct commonly associated with speech," or as an "incidental" restriction
on speech.  The controls focus directly on an important form of academic and
scientific communication.  The cryptography regulations are a censorship
scheme that must receive the strictest judicial scrutiny, not the attenuated
review proposed by the government.

The cryptography scheme directly impedes speech in three significant ways.
First, it directly restricts the languages of the scientific dialogue.
Second, it limits the media by which the speech may be conveyed. Third, the
scheme impedes the ability of all Americans to communicate using encrypted
speech.

a.		The Regulations Restrict Communications Written in Programming
Languages

As demonstrated by Appellants' admissions that programming languages,
including source code, are important means of communication for computer
scientists and academics, the cryptography scheme imposes a direct burden on
protected expression.  A national commission recognized years ago,
"[C]omputer programs are a form of writing. . . .  The instructions that
make up a program may be read, understood, and followed by a human being."32
As a form of language, computer code is inherently expressive, and therefore
protected by copyright, thus  lending further support for the conclusion
that computer programs are protected by the First Amendment. 33

Just as composers use the specialized language of musical notation to
specify what notes are to be played when, computer programmers use
specialized languages familiar to their audiences to communicate precisely.
Professors Abelson and Sussman of the Massachusetts Institute of Technology
have explained that programming languages speak to people as much as they
speak to computers:

   Just as everyday thoughts are expressed in natural language, and formal
   deductions are expressed in mathematical language, methodological
   thoughts are expressed in programming languages.  A programming language
   is a medium for communicating methods, not just a means for getting a
   computer to perform operations -- programs are written for people to
   read as much as they are written for machines to execute.

Abelson and Sussman, Structure and Interpretation of Computer Programs,
preface, page xv. (1985); see AER 965-69.  Similarly, the author of the
seminal work on computer programming, Professor Donald E. Knuth of Stanford
University, wrote:  "Programming is best regarded as the process of creating
works of literature, which are meant to be read . . .  Computer programs
that are truly beautiful, useful, and profitable must be readable by people.
So we ought to address them to people, not to machines."  Donald E. Knuth,
Literate Programming, preface, ix (1992).  See AER 73-4; 104-6; 108-9;124-5;
140-141; 183-86, 188; ER 301.

For this reason, articles and papers containing and discussing cryptographic
algorithms, source code and theories have been published in scientific
journals for over 25 years for peer review and evaluation.  ER 301 (Joint
Statement); see also AER 106-8. While some computer languages are more
difficult for lay people to read, others are very close to standard English.
An example of the latter is the program that can calculate the date of
Easter for any given year.  It contains simple, readable instructions such
as "Divide year by 100 giving century." AER 573.34

While not denying the inherently communicative nature of computer language,
the government asserts that it has no intention of restricting such
communication.  Instead, Appellants seek to diminish the level of First
Amendment scrutiny in this case by claiming that the cryptography scheme is
"not aimed at preventing the free exchange of information and ideas about
cryptography," but seeks only to regulate cryptographic software because of
its "capacity" (called "functionality" by the government below).  The
scheme, according to this argument, distinguishes between the control of
"encryption products" and "cryptographic information."  Appellants' Brief at
29 (emphasis in original).

This argument is pure semantics.  Where, as here, government action directly
restricts protected speech, the government's good intentions are irrelevant.
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460
U.S. 575, 592 (1983) (illicit legislative intent is not the sine qua non of
a First Amendment violation).  In addition, the government's argument is
based on a false dichotomy.

That the cryptography scheme exempts the communication of source code when
written on paper (evidently because such distribution is part of the "public
dissemination of cryptographic knowledge," Appellants' Brief at 38), applies
it to the identical information when published on the Internet or on a
floppy disk (evidently turning the "speech" into a "product") reveals that
there is no difference in the government's distinction. Information in
either form can be used to make a computer operate, and perhaps for that
reason Appellants "reserve[d] the right to control scannable source code."35

Further, most speech has the "capacity" to do something.  Political speech
has the capacity to spur people to vote or to protest; parody has the
capacity to inflict emotional distress; even truthful speech has the
capacity to damage reputation.  Much speech that we describe in terms of
content can also be characterized in terms of "capacity."  On Appellants'
view, such regulation would escape strict scrutiny.  See Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134 (1992) (permit fee based on the
capacity for a march to cause violence was content-based).

The government attempts to distinguish cryptographic "products" from
"speech."  However, similar First Amendment "distinctions" when applied to
communications media have been debunked over time.  For example, the cinema
is now fully protected under the First Amendment.  This was not always the
case, however. Initially the Supreme Court denied constitutional protection
by applying the same distinctions the government advocates here:  that "the
exhibition of moving pictures is a business, pure and simple,"36 (i.e., a
"product" as opposed to "speech") and it is "capable of evil, having the
power for it, the greater because of their attractiveness and manner of
presentation" (i.e., it has greater "capacity").37  The Court ultimately
overruled this analysis38 and now treats film as "one of the traditional
forms of expression such as books" that are protected as "pure speech."39

Finally, because computer programs are sets of instructions,40  the
government cannot control what those instructions do without also
controlling what they say. See Appellants' Brief at 28.  Like a regulation
that would prevent composers from exchanging sheet music or a recording of a
composition, the cryptography regulations fundamentally alter the substance
of academic exchange.  It is not the same, for example, to allow the
composers freedom to exchange written essays on music theory - the melody
would be lost.  For that reason, it is the "usual rule that governmental
bodies may not prescribe the form or content of individual expression."
Cohen v. California, 403 U.S. 15, 24 (1971).  It is not possible to restrict
the form of expression "without also running a substantial risk of
suppressing ideas in the process."  Id. at 26.  The cryptography regulations
on software do just that.

b.	The Regulations Restrict Internet Publication

The export controls also significantly restrict the way in which scientific
exchange takes place.  The government admits that computer scientists and
programmers commonly publish their programs electronically on the Internet41
to engage in the scientific exchange of ideas and information. ER 302 (Joint
Statement).  This process lies at the heart of First Amendment, as well as
the scientific method, which requires that new ideas be continually tested
and discussed in the "marketplace of ideas." AER 15; 16; 73; 76.  In
essence, science itself is a worldwide web of conversation among scientists.
A scientist like Professor Bernstein publishes an idea in any of these fora,
expressed in source code, mathematics or any language he deems appropriate.
Others -- academics, commercial scientists, or hobbyists -- then read or
test his work, perhaps publishing their own comments or improvements,
thereby continuing its development.  Like many others in the record,42 Dr.
Ginsparg of Los Alamos Labs, confirmed that "these systems and discussion
groups are a fundamental part of the development of science.  They are the
natural extension of, and I believe the successor to, print publication of
ideas."  AER 124.

Professor Bernstein seeks to publish his ideas in "sci.crypt," an Internet
"newsgroup" or informal discussion group about cryptography.43  He also
wishes to publish his ideas in more traditional academic journals.  Yet an
increasing number of journals like the AAAS publication Science, formerly
available only on paper, are now also electronically available on the
Internet. In fact, AAAS has publicly warned that the cryptography
regulations affect Science because it is published in both print and
electronic form.  ER 566-7.

Professor Bernstein also seeks to share his ideas by teaching, another
activity which today often involves the Internet.  AER 16-17. University
classes in computer-related fields often have course syllabi, assignments,
and materials available on the Internet, see Reno, 117 S. Ct. at 2334
(colleges and universities provide Internet access to students and
faculty);44 some require students to publish on the Internet.  AER 145.  In
the case below, the government argued that it should be able to prosecute
Professor Bernstein if he placed his course materials -- which included
cryptographic software -- on the University of Illinois Web site as part of
the process of distributing course materials to his students.45

Finally, Professor Bernstein must be free to share his ideas with colleagues
before he decides whether to publish them; 46 academic freedom embraces
one-to-one exchanges of ideas and information with one's colleagues.47

Appellants claim that they do not restrict academic speech because "the EAR
excludes books, magazines, and other printed materials on all subjects,
thereby giving carte blanche to the export of publications on cryptography."
Appellants' Brief at 29.  But these regulations plainly do not give carte
blanche.  If Professor Bernstein uses paper, he can publish and exchange
software.  But if he wishes to use the Internet, he cannot publish or
exchange software.  Far from giving carte blanche, the government is
actively restricting a medium recently found to be entitled to maximum First
Amendment protection.  Reno, 117 S. Ct. at 2344.

The Reno Court emphatically rejected the argument that a law could
"effectively censor[] discourse on many of the Internet's modalities" so
long as it permitted speakers a "reasonable opportunity" to engage in speech
in other areas.48 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," and it reaffirmed the bedrock principle that
"'one is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in some
other place.'"  Id. at 2348-49, quoting Schneider v. State, 308 U.S. 147,
163 (1939). See also Lakewood, 486 U.S. at 762 (holding as "meaningless" the
distinction of distributing newspapers "by a machine rather than by hand").

c.	The Regulations Restrict the Ability to Encrypt Speech

Appellants claim broad ability to regulate cryptography because it can make
speech private.  But this characteristic of encryption technology is another
reason why the government's actions are subject to First Amendment
scrutiny.49  Federal law describes cryptography as method of secret
writing.50

The Supreme Court has long considered individual privacy in communications
to be a core element of freedom of speech.  For example, the Court has
established that "[t]he right to speak and the right to refrain from
speaking are complementary components of the broader concept of 'individual
freedom of mind.'"51  Freedom from compelled speech is a "fixed star in our
constitutional constellation."52  A related line of cases holds that the
First Amendment includes the right to teach a foreign language.53 Yet
another line of authority directly addresses the First Amendment right to
speak anonymously. 54  Following the same principles, the Supreme Court has
struck down state laws that required members of groups to reveal their
identities.55

In each of these First Amendment contexts, the government advanced powerful
justifications to restrict speech, yet the courts held that they were
insufficient to overcome constitutional protections for privacy and speech.
Here, Appellants raise a number of national security claims, but they must
overcome the fact that encrypted speech is nevertheless speech. See McIntyre
v. Ohio Elections Commission, 115 S. Ct. at 1524 ("our society accords
greater weight to the value of free speech than to the dangers of its
misuse"), citing Abrams v. United States, 250 U.S. 616, 630-631 (1919)
(Holmes, J., dissenting).  Given this background, the government may justify
encroachments upon the ability to encrypt speech only upon a compelling
showing of need.

It may be true that the constitutional status of cryptography presents a
"novel" question. Appellants' Brief at 24.  It is novel, however, only in
that it has not been previously litigated -- the First Amendment principles
involved are well established.  The Supreme Court confronted a similar
situation involving the Fourth Amendment in 1928 when it first confronted
the constitutional status of wiretapping.  In Olmstead v. United States, a
five vote majority held that the Fourth Amendment did not prevent
warrantless wiretapping.56 Justice Brandeis, whose views ultimately
prevailed, wrote in dissent that constitutions must be interpreted with
technological advancements in mind in order to preserve fundamental
rights.57

Eventually, the Court came to share Justice Brandeis' views, overruling
Olmstead in Katz v. United States, 389 U.S. 347, 351 (1967). The Court
applied Fourth Amendment requirements to electronic surveillance, reasoning
that "[t]o read the Constitution more narrowly is to ignore the vital role
that the public telephone has come to play in private communication."  Id.
at 352. The same understanding should be applied to the ability to encrypt
speech.

3.	Appellants Have Not Shown That The Publication of Cryptography Would
Cause Direct, Immediate and Irreparable Harm to National Security

As demonstrated above, the cryptography regulations fail  the Freedman
analysis.  In addition, however, the cryptography regulations must meet the
substantive prior restraint requirements of New York Times Co. v. United
States, 403 U.S. 713 (1971), by proving that publication would "surely
result in direct, immediate and irreparable damage to our Nation and its
people."  Id. at 730 (Stewart, J. concurring).  Here, the government asserts
a strong national security interest in maintaining a system of
prepublication review, but provides no proof in support of its assertion.
Instead, it flatly states that "the national security claims in the
Executive Order "require[] no elaboration."  Appellants' Brief at 35.

While it is indisputable that national security can be a compelling national
interest and that the Executive Branch is given broad latitude in performing
its duties in this area, the Supreme Court has made clear that national
security or "the phrase 'war power' cannot be invoked as a talismanic
incantation"58 to support its policies, as the government is attempting to
do in this case.

New York Times is particularly relevant to the Appellants' assertion of a
compelling interest here.  In that case, Justices Douglas and Black flatly
rejected the government's national security "mantra" in New York Times,
noting that "[t]he word 'security' is a broad, vague generality whose
contours should not be invoked to abrogate the fundamental law embodied in
the First Amendment."  New York Times, 403 U.S. at 719 (Black, J., and
Douglas, J., concurring). Justice Brennan also rejected the argument that
publication "'could,' or 'might,' or 'may' prejudice the national interest
in various ways."  Id. at 725 (Brennan, J., concurring).  Here the
government's stated concern is that speech about cryptography "may be used"
to harm national security.  15 C.F.R. Sect. 742.15.

Appellants' seek to distinguish New York Times as a case in which the
government sought to restrict "disfavored speech."  Appellants' Brief at 38.
That is not how the Supreme Court saw it.  Several Justices were convinced
that American lives would be lost due to publication.  See New York Times,
403 U.S. at 717 (Black, J., and Douglas, J., concurring).  There, the
government sought to restrict speech based on its expected consequences -
harm to the national security.  Their argument here is the same.59  Here,
the District Court correctly applied the "exacting standard" governing prior
restraints under which the government's asserted need "to break foreign
encryption and conduct adequate surveillance 'in furtherance of world peace
and the security and foreign policy of the United States,' . . . [is]
clearly insufficient without more."  Bernstein II, 945 F. Supp. at 1288;
Bernstein I, 922 F. Supp. at 1436; see, e.g., Bernstein III, ER 569.

Importantly, the Government has given directly contrary testimony to its
assertions here regarding its national security interest in preventing
Internet publication. Admiral J. M. McConnell testified before Congress
that, "[e]ncryption software distribution via Internet, bulletin board or
modem does not undermine the effectiveness of encryption export controls."60
Furthermore, Appellants' key declarant, William P. Crowell, of the National
Security Agency, last year informed the House Committee on the Judiciary
that "serious users of security products don't obtain them from the
Internet." AER 375.  Such testimony leads to the conclusion that Appellants
do not even believe their national security assertions here.

The fact that this case involves export regulations does not diminish the
government's burden of proof.  In Bullfrog Films, Inc. v. Wick, 847 F.2d
502, 509-514 (9th Cir. 1988), this Court invalidated USIA regulations
regarding the export of educational, scientific and cultural audio-visual
materials as being facially inconsistent with the First Amendment, overly
broad and vague. Contrary to the government's present reading of that case,
Bullfrog Films found that "the First Amendment protects communications with
foreign audiences to the same extent as communication within our borders,"
and held that an export restriction would be justified only where the
government demonstrated "a clear and direct threat to national security." 
847 F.2d at 509 n.9, 511-512. 61

The government's national security claim boils down to the simple assertion
that the capacity to encrypt speech brings with it the capability to inflict
harm.  But such an assertion cannot justify a prior restraint.  "Much speech
is dangerous. Chemists whose work might help someone build a bomb, political
theorists whose papers might start political movements that lead to riots,
speakers whose ideas attract violent protesters, all these and more leave
loss in their wake." American Booksellers Asso. v. Hudnut, 771 F.2d 323, 333
(7th Cir. 1985), aff'd mem., 475 U.S. 1001, reh'g denied, 475 U.S. 1132
(1986). Even outside of prior restraint analysis, direct advocacy of
illegality or violence cannot be punished without proof that the speaker
intended that the illegal acts occur and that it was likely, under the
circumstances, to occur imminently. Brandenburg v. Ohio, 395 U.S. 444, 447
(1969).

Ultimately, Appellants' simply argue that publishing encryption software
makes it easier or more likely that a foreign person will use encryption
software to frustrate American surveillance.  But even under Brandenburg's
principles, which are less stringent than those applicable to prior
restraints, the mere publication of encryption software must so imminently
facilitate this harm that it equals causing it.  "Capacity" not only ignores
remoteness in time completely, it expressly allows prosecution of a person
"[e]ven if the person . . . does not intend or expect that the software will
be used for purposes contrary to this country's national security and
foreign policy interests"62  See Appellants' Brief at 33 n.13.  Yet it is
settled law that speech cannot be punished unless both imminence and harmful
intention are proven.63

B.	THE EXPORT CONTROLS ON CRYPTOGRAPHIC SPEECH ARE INVALID EVEN UNDER THE
REDUCED FIRST AMENDMENT SCRUTINY THE GOVERNMENT ADVOCATES

Even if the cryptography scheme is subject to a more lenient First Amendment
standard as Appellants' claim, the government has failed to demonstrate that
the rules are constitutional.  To survive intermediate scrutiny, Appellants
must demonstrate that the government's national security interest is real
"and not conjectural,"64 that its policies actually serve the purported
interest, and that the cryptography scheme does not impose too great a
burden on protected speech.  Here, the government's defense of the scheme
fails on all counts.

1.	The Cryptography Scheme Does Not Further the Government's Asserted
Interest

The government must prove that the cryptography regulations "in fact
alleviate [the asserted] harms in a direct and material way."  Turner
Broadcasting System, 512 U.S. at 644.  However, when the government seeks to
regulate speech, or even "conduct commonly associated with speech," it is
well-established that this test is not met when the information subject to
regulation is publicly available.  See, e.g., Florida Star, 491 U.S. at 535
(no meaningful public interest served by rape-shield statute which
restricted further publication of already public information.).65  Nordyke
v. Santa Clara County, 110 F.3d 707 (9th Cir. 1997) (ban on commercial
speech related to gun sales at county fair enjoined where restriction does
not curtail advertising and sale of guns elsewhere in the county).  This
principle applies even where a prior restraint on national security grounds
might otherwise be upheld.  United States v. Progressive, Inc., 467 F. Supp.
990 (W.D. Wis.), reh'g denied, 486 F. Supp. 5 (W.D. Wis.), dismissed, 610
F.2d 819 (7th Cir. 1979) (injunction dissolved after subsequent publication
of H-bomb material).  Here, the public availability of information about
cryptography undermines the government's ability to serve its asserted
interest for two reasons.

a.	The Printed Matter Exemption Undermines the Claim That the
Cryptography Scheme Serves the Government's Interest

In claiming a lack of any intention to censor ideas, Appellants claim that
Professor Bernstein can export paper publications on cryptography.
Appellants' Brief at 29.  In other words, Professor Bernstein needs a
license to publish Snuffle.c on the Internet, but he does not need a license
to send a thousand paper copies to foreign persons overseas.  Viewed on its
face, the exemption for print communication "diminish[es] the credibility of
the government's rationale for restricting speech in the first place." Ladue
v. Gilleo, 512 U.S. 43, 52 (1994).

This exemption belies the claim that "encryption [software] poses unique and
serious threats to national security," because under it, encryption remains
"freely available" to "technologically sophisticated" foreigners; indeed,
"[d]efendants conceded at oral argument that the effect of [this] dichotomy
would be to make it more difficult only for the inept."  Bernstein III, ER
568 and 560. ("the government conceded that in only a slighter greater
length of time and with some greater technological skill, the regulation
could be defeated").  Thus, the distinction upon which the government hangs
its entire argument is not one of substance, but of marginal convenience in
the ability of a recipient to use the information conveyed.  See, e.g.,
Bernstein II, 945 F. Supp. at 1279 n.10.

Appellants further demonstrate their unbridled discretion to censor
cryptographic speech by their hedging of the print exception.  They
expressly "reserve the right to control scannable source code."  61 Fed.
Reg. 68575.  In doing so, the government has placed the academic community
on notice that it has merely decided not to license books - yet. Appellants'
reservation of the right to control printed materials is an especially
powerful reason why the scheme "is so irrational and administratively
unreliable that it may well serve to only exacerbate the potential for
self-censorship."  Bernstein III, ER 560.

b.	Encryption Software Is Widely Available Abroad

Another problem in Appellants' claim of harm to national security is that
encryption software is widely available abroad.  A limitation on domestic
publication cannot be justified when the same speech is available from
foreign sources.  ACLU, 929 F. Supp. at 848, 882-83.  In the case of
cryptography, Rep. Bob Goodlatte reported that more than 500 foreign
encryption products and programs that exceed the limits of U.S. export
controls are available internationally.66

2.	The Regulations Restrict Too Much Speech

Under either strict or intermediate scrutiny, any government regulation must
not "impos[e] an unnecessarily great restriction on speech."  Reno, 117 S.
Ct. at 2347 (citation and quotation marks omitted).  Here, the cryptography
scheme restricts too much speech because it is too imprecise. Cryptographers
wish to publish and exchange scientific work, ranging from technical
information to computer programs. Appellants' wish to prevent foreign
persons who are targets of U.S. intelligence-gathering efforts from
obtaining U.S. cryptography because it may hinder those efforts.  Even were
this not a futile exercise, this prepublication licensing scheme sweeps far
too broadly to fit this narrow interest.  For every foreign person who may
be targeted for U.S. electronic surveillance, there must be thousands if not
millions who will never be.

That the cryptography scheme sweeps excessively is obvious.  The
cryptography scheme does not "punish the few who abuse rights of speech
after they break the law" but "throttle[s] them and all others beforehand."
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975) (emphasis
in original).  The "widespread impact" of the cryptography licensing scheme
"gives rise to far more serious concerns" than could any injunction targeted
at a specific publication or even a particular speaker; "unlike an adverse
action taken in response to actual speech, this [scheme] chills potential
speech before it happens."  United States v. National Treasury Employees
Union, 513 U.S. 454, 468 (1995).

C.	THE DISTRICT COURT JUDGMENT IS PROPER

1.	The Declaratory Relief Granted Is Appropriate

The Government asserts that the declaratory relief sought and obtained below
"is unduly broad even if the [District Court's] First Amendment reasoning is
accepted."  Appellants' Brief. at 44-45. Appellants advance two arguments in
support of this contention: (1) the judgment should be rewritten to erase
"object code" from the definitional controls on "encryption software"
envisioned by the cryptography scheme; and (2) the court's invalidation of
the cryptography controls on encryption and decryption software "and related
devices" must be redrafted to clarify the intended reach of the court's
judgment.  Neither has merit.

There can be no dispute that the District Court has the authority to enter
declaratory judgment where it is appropriate to do so.  Title 28 U.S.C.
Sect. 2201.  Appellants contest the authority of the District Court to enter
declaratory judgment, and aver that the judgment declaring cryptography
controls on "encryption software" unconstitutional as a prior restraint on
speech is improper, because it necessarily "encompasses not only source code
but also object code." Appellants' Brief at 45. For three reasons, however,
Appellants' contention is in error.

First, the key assertion underlying Appellants' position -- that object code
is "nonexpressive" and therefore cannot be regarded as "speech" under the
District Court's First Amendment analysis -- is nowhere supported in the
record, and, indeed, is contradicted by the very authority cited.67  As this
Court observed in Sega Enterprises, 977 F.3d at 1524, copyright protection
for an original expressive work in the form of a computer program naturally
"extends to the object code version of the program."  Id., at 1520.68  By
analogy, therefore, both source code and object code constitute protected
expression for purposes of First Amendment analysis.

Second, the Government urges this Court to invoke a variety of statutory
constructions to  invalidate the declaratory relief entered below. Among
these is the suggestion that the Court excise "object code" from the
regulatory control of "encryption software," which is specifically defined
to "includ[e] source code, object code, applications software, or system
software."  15 C.F.R. Sect. 772.  This Court need not tarry in rejecting
Appellants' invitation.  Canons of statutory construction, "are not a
license for the judiciary to rewrite the language enacted by the
legislature."  United States v. Monsanto, 491 U.S. 600, 611 (1989) (citation
omitted).  Here, the regulatory language is clear. The regulations do not
differentiate between the categories of expression covered by the
cryptography controls on "encryption software" and, indeed, crafted a
regulatory scheme expressly designed to encompass all expressive components
of such software. See 15 C.F.R. Sect. 772.  Whatever force there might be to
Appellants desire to excise specified categories of expression from
regulatory control, the short answer is that the regulations were not
written that way.  See, e.g., Monsanto, 491 U.S. at 611.

Third, Appellants' alternative argument --  that the invalidation of the
cryptography controls on encryption and decryption software "and related
devices" requires modification to clarify the intended reach of the District
Court declaratory judgment -- is equally specious.  Obviously the scope of
declaratory relief granted in a given case must be considered in context.
While it is certainly true that the word "devices" is not a defined term
under the cryptography regulations, the District Court's Opinion makes plain
that the court's declaratory relief is directed not to commodities (defined
as "[a]ny article, material, or supply except technology and software," (15
C.F.R. Sect. 772)) (emphasis added), but to "software," and more
specifically "encryption and decryption software," and related technology. 
No further clarification is required.

Lastly, Appellants argue that a judicial declaration invalidating 15 C.F.R.
Sect. 744.9(a) as a prior restraint on speech is foreclosed by this Court's
decision in United States v. Edler Industries, 579 F.2d 516 (9th Cir. 1978).
However, Edler is distinguishable from this case.

First, Edler did not present a facial challenge.  Here, in contrast, even if
a narrowing construction were available to provide a scienter defense to
prosecution under the cryptography scheme, the regulations continue as a
facial prior restraint scheme fostering self-censorship.

Moreover, in Edler, the Court held that where the commodity at issue could
be used in either military or non-military applications, one must know or
have reason to know that technical data at issue is "significantly and
directly related" to the military application to be subject to prosecution
under the ITAR.  Id. at 521.  Here, in contrast, the cryptography controls
under the EAR, by their terms, exclusively concern non-military
applications.  See 61 Fed. Reg. 68585 (to be codified as 15 C.F.R. Sect.
772). Edler is therefore of doubtful relevance to the constitutional
infirmities presented by the current regulatory scheme. See also AER 273,
OLC Memo. ("We do not believe that [Edler] resolves the First Amendment
issues presented by the restrictions on the export of cryptographic ideas.")

Third, Edler was fundamentally about the "conduct of assisting . . .
enterprises . . . " Edler, 579 F.2d  at 521.  This court clearly understood
that commercial arms traffic is one thing, while scientific exchange is
another.  Yet, 15 C.F.R. Sect. 744.9 clearly applies to purely academic
"technical assistance."

Accordingly, the District Court properly granted declaratory relief on these
issues.

2.	The Injunction Is Appropriately Tailored To The Circumstances Of This
Case

Although Appellants do not separately address the issue, the scope of
injunctive relief afforded below is appropriate for each of five reasons.

First, as set forth above, Professor Bernstein established the merits of his
case.  The cryptography regulations plainly lack the required protections
for prior restraints on speech and even fail the tests for content-neutral
regulations proposed by Appellants.

Second, Professor Bernstein continues to suffer an actual, not just
threatened, violation of his First Amendment rights.  As the U.S. Supreme
Court has held, the "[l]oss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury" justifying
injunctive relief.  Elrod v. Burns, 427 U.S. 347, 373 (1976).

Third, the finding the Professor Bernstein's First Amendment rights have
been abridged, and will continue to be abridged, without the granting of
injunctive relief leads to the conclusion that the he has no adequate remedy
at law.  Professor Bernstein can never be made whole by an award of money
damages.  He instead seeks only what the Constitution commands:  the right
to write and publish his work and to receive such materials from others. 
Only an injunction preventing enforcement of the cryptography controls, and
allowing Professor Bernstein to exercise his constitutional right to speak
in the language and medium employed in his field of applied research, will
make him whole.

Fourth, the balance of equities favors Professor Bernstein.  As noted above,
he has suffered and will continue to suffer irreparable harm if the District
Court's injunction is not upheld.  In contrast, the only harm to Appellants
if the injunction is upheld is the judicially noncognizable harm that will
result from not being able to enforce unconstitutional regulations.

Last, there is a peculiarly strong reason for upholding the nationwide
relief afforded in this case.  The First Amendment encompasses not only the
right to speak, but the right to listen and exchange information.  See
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425
U.S. 748, 756 (1976) (where a speaker exists . . . the protection afforded
[by the First Amendment] is to the communication, and to its source and to
its recipients both") (emphasis added).  Professor Bernstein wishes to
publish, discuss and exchange his ideas with others in all public forums,
including the new and unique public forum commonly known as the Internet. 
As demonstrated above, these types of academic discussions and exchanges are
at the heart of the First Amendment as well as the scientific method, which
requires that new ideas and their applications continually be tested and
discussed in the marketplace of ideas.  See supra at 35-71; Gordon & Breach
Science Publishers S.A. v. American Institute of Physics, 859 F. Supp. 1521,
1541 (S.D.N.Y. 1994) (debate in academic journals is "near the core of the
First Amendment").

Without the full injunctive relief afforded by the District Court, however,
there will be no exchange -- Professor Bernstein could "speak," but no one
may reply.  In short, the First Amendment right of Professor Bernstein to
listen, learn, discuss, explain, and otherwise "test" his work in the
marketplace of ideas cannot be protected unless the rights of others to
speak, discuss and engage in academic exchange are also protected.

Accordingly, Professor Bernstein asks that the Court lift the stay pending
appeal, and affirm the District Court's judgment for injunctive relief in
its entirety.

VI.	CONCLUSION

Appellants' argument here in a sense parallels that in Reno, where the
government claimed a compelling interest in restricting children's access to
indecent speech.  That interest did not justify broad suppression of speech
addressed to adults, however, because the government may not reduce adult
speech to what is fit for children.  Reno, 117 S. Ct. at 2346.  That
principle, paraphrased, is applicable here:  A government agency may not be
given unfettered discretion to reduce Americans' scientific speech, based
upon its subject matter, to what is deemed fit for foreign targets of U.S. intelligence. 

Based upon the foregoing, Appellee respectfully requests that
the District Court's decision be upheld in its entirety.

Dated: _______________ 		McGLASHAN & SARRAIL 
                            Professional Corporation

                            By:________________________ 
                            CINDY A. COHN


FOOTNOTES

1	When this case began, Professor Bernstein was a Ph.D. candidate in
mathematics at the University of California at Berkeley.  He has since
received his degree and has begun his academic career.

2	This action is a facial challenge to the government's regulations as
they relate to encryption software, technology and technical assistance
("cryptography regulations").  Most of the cryptography regulations were
promulgated by Appellants on December 30, 1996 and were inserted into the
already existing Export Administrations Regulation (EAR), which operate
pursuant to the authority granted in the Export Administration Act (EAA).
See infra at 8-9.  Specifically, this challenge extends to the restrictions
which the regulations place on encryption software, controlled under ECCN
5D002, encryption technology, controlled under ECCN 5E002 and
encryption-related technical assistance controlled by 15 C.F.R. Sect. 744.9.
Plaintiff submits that on their face these three categories create an
unconstitutional prior restraint on scientific speech.

3	National Research Council, Cryptography's Role in Securing the
Information Society (1996) ("NRC Report").

4	The OLC found that the "requirement of a license as a prerequisite to
exports of cryptographic information clearly raises First Amendment
questions of prior restraint."  Applying Supreme Court precedents, OLC
identified "at least two fundamental flaws" in the export regime:  (1) "the
standards governing the issuance or denial of licenses is not sufficiently
precise to guard against arbitrary and inconsistent administrative action,"
and (2) "there is no mechanism established to provide prompt judicial
review" of licensing decisions.  Memorandum of John M. Harmon, Assistant
Attorney General, Office of Legal Counsel, to Dr. Frank Press, Science
Advisor to the President (May 11, 1978). Appellee's Exceprts of Record
("AER") 240-55.

5	David Kahn, The Codebreakers: The Story of Secret Writing at 68 (1973,
abridged version).

6	Talley v. California, 362 U.S. 60, 65 (1960).

7	Alan Pell Crawford, Founding Fathers' Forum, Wall Street Journal, Feb.
2, 1995 at A16.

8	Ralph E. Weber, Masked Dispatches:  Cryptograms and Cryptology in
American History 4 (Center for Cryptographic History, 1993).

9	In late 1981, the presidents of five major universities signed letters
to Appellants that they were "deeply concerned about recent attempts to
apply to universities the [export restrictions]".  National Academy of
Sciences, Scientific Comm. & National Security, 136-139 (1982).

10	 See Allen M. Shinn, Jr., The First Amendment and the Export Laws:
Free Speech on Scientific and Technical Matters, 58 George Washington Law
Review 368, 371 (January 1990).  See also M. Christina Ramirez, The Balance
of Interests Between National Security Controls and First Amendment
Interests in Academic Freedom, 13 J.C. & U.L. 179, 192 & n.101 (Fall 1986).

11	The Government's Classification of Private Ideas:  Hearings Before a
Subcomm. of the House Comm. on Gov't Operations, 96th Cong. 2d Sess., H.
Rep. No. 96 1540 (1980) at 67.  Foreshadowing this case, the Report also
noted that "efforts by the intelligence community to restrict public
cryptography pose enormous questions of constitutional validity." Id at 63.

12	Appellants specifically noted that "neither [Professor Junger nor Mr.
Miller] provided the software to the Government for any determination as to
whether it was covered by the ITAR."  AER 424.  These examples demonstrate
that the cryptography regulators act as prepublication censors of academic
materials.

13	Senator Trent Lott, Cong. Rec.  S10879-S10881 (October 21, 1997).  See
FBI Director Raises the Ante:  Government Wants Mandatory Key Recovery, 2
Electronic Information Policy & Law Report 927, 930 (Sept. 12, 1997).

14	International Traffic in Arms Regulations, 22 C.F.R. Sect.
120.1-130.17 (1994), promulgated pursuant to the Arms Export Control Act 22
U.S.C. Sect. 2778.

15	922 F.Supp. 1426 (N.D. Cal. 1996).

16	As noted above, the cryptography regulations were inserted into the
EAR, which implement the EAA.  Because the EAA expired in 1994, the
regulations are currently authorized by the International Emergency Economic
Powers Act (IEEPA).  Executive Order No. 13,026.

17	"Technology" is defined as the specific information necessary for the
"development", "production", or "use" of a product.  The information takes
the form of "technical data" or "technical assistance.  15 C.F.R. Sect. 772.

18	Nuclear Pacific, Inc. v. United States Department of Commerce, No. C84
49R (W.D. Wa. June 8, 1984) (order denying motion to dismiss), see e.g.
Milena Ship Management Co. v. Newcomb, 804 F. Supp. 846, 859 (E.D. La.
1992), aff'd, 995 F.2d 620 (5th Cir. 1993), cert denied, 510 U.S. 1071
(1994) (IEEPA does not bar judicial review of certain asset blocking actions
by the Office of Foreign Assets Control).

19	15 C.F.R. Sect. 732.2(b), (d), 734.3(b)(3), 734.4, 734.7(c), 734.8(a),
734.9 and Supplement No. 1 to Part 734, & 15 C.F.R. Sect. 768.1(b).

20	Another example of this absurdity is the regulatory treatment of a
cryptographic algorithm called the Data Encryption Standard, or DES.  The
U.S. Government itself has written the specifications for DES software and
has published them worldwide.  As a result, DES is widely implemented into
computer programs, is used all around the world and is available from many
foreign Internet sites.  Yet publication of DES source code on a U.S.
Internet site still requires a license.  NRC Report at 314.

21	An "algorithm" is the mathematical term for a set of instructions or
recipe. Gottschalk v. Benson, 409 U.S. 63, 65 (1972) ("A procedure for
solving a given type of mathematical problem is known as an algorithm.")

22	AER 6 & 7.  Since he wrote Snuffle, Professor Bernstein has also
written other cryptographic algorithms and expressed them as computer
programs. AER 342-3.  Under stipulation with the government, and subject to
publication restrictions, he was permitted to teach some of them in a
university course on cryptography in spring semester 1997. AER 484-489.

23	Eventually Professor Bernstein submitted a second round of five
separate requests to the State Department, each of which asked if he could
publish a different Snuffle-related item.  AER 8-17. He divided his items up
in order to give the Appellants the opportunity to consider each item
separately.  AER 13-14.   On October 5, 1993 the State Department notified
Professor Bernstein that all of the referenced items were defense articles
under Category XIII(b)(1).  Bernstein I, 922 F. Supp. at 1430 (emphasis in
original).  Believing that further appeal would be futile or ignored, he did
not appeal Defendants' second determination.

24	The District Court specifically noted:  "plaintiff had every reason to
believe his paper had been determined to be a defense article until
defendants' clarifying letter of June 29, 1995." Bernstein I, 922 F. Supp.
at 1437 n.19.

25	The Instructions are controlled as "technology." See AER 42-44.

26	Defendants have even exercised their discretion beyond the plain
language of their regulations.  They have told several persons who wish to
export software with no capability to encrypt that an export license is
required merely because a recipient might later add encryption capability.
See AER 81-3 and 502-6. The lack of judicial review makes it impossible to
challenge such plainly improper regulatory applications.

27	Appellees agree that the constitutionality of the cryptography
regulations is subject to de novo review by this Court.  Appellants' Brief
at 23.

28	The Government's claim regarding the neutrality of the EAR scheme as a
whole is irrelevant.  Both Plaintiff's challenge and the district court
decision are limited to the regulations on cryptography which are
significantly more restrictive than the EAR.  See supra at 12-13.

29	Appellants' Brief at 27.  See also ER 308 (Joint Statement).
("[c]ryptographic 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").

30	See AER 431-2.  See also Appellants' Brief at 33 n.13 (export controls
apply "[e]ven if the person exporting the software does not intend or expect
that the software will be used for purposes contrary to this country's
national security and foreign policy interests").

31	Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).  The Supreme
Court has stressed that society has an interest in preserving "freedom of
expression by the scientists and engineers," Bush v. Lucas, 462 U.S. 367,
371 (1983) and this Court has characterized scientific expression and debate
as part of First Amendment "heartland."  United States v. U.S. District
Court, 858 F.2d 534, 542 (9th Cir. 1988).

32	Final Report of the National Commission on New Technological Uses of
Copyrighted Works ("CONTU Report"), at 6 (July 31, 1978).

33	"[T]he Framers intended copyright itself to be the engine of free
expression."  Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S.
539, 558 (1985).  Copyright law expressly recognizes that computer programs
are "literary works."  17 U.S.C. Sect. 101, 117.  See also Sega Enterprises Ltd
v. Accolade, inc., 977 F.2d 1510, 1519 (9th Cir. 1993).  Alfred C. Yen, A
First Amendment Perspective on the Idea/Expression Dichotomy and Copyright
in a Work's Total Concept and Feel, 38 Emory L.J. 393, 430, n.190 (1989).

34	Appellants propose a First Amendment exception for speech which can
also be used to control a machine without necessarily conveying information
to the user.  Appellants' Brief at 27.  But this exception could prove much
more dangerous than it may appear.   For example, computers can already
understand sheet music, allowing, for example, a person who does not
understand musical notation to nonetheless direct a computer to play a song.
The government's proposal could mean that as computers become more adept at
understanding human language, more forms of fully protected speech, such as
sheet music, would become less protected.

35	61 Fed. Reg. 68575. Even when code is not published in scannable form,
the government's purported distinction breaks down.  See Bernstein II, 945
F. Supp. at 1279 n.10 ("They think terrorists can't type?").  On the basis
of "capacity", the government could as easily "reserve the right" to
restrict non-scannable source code, or even academic papers to the extent
such materials could be used by foreign persons to develop encryption
capability.

36	Mutual Film Corp. v. Industrial Com. of Ohio, 236 U.S. 230, 242
(1915).

37	Id. at 242, 244.

38	Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-03 (1952).  See also
United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948).

39	See New York v. Ferber, 458 U.S. 747 (1982);  Freedman, 380 U.S. at
51.

40	See Appellants' Brief at 6 and citations therein.

41	The most well-known aspect of the Internet, the World Wide Web, was
originally developed for physics research and only later "extended beyond
the scientific and academic community."  ACLU, 929 F. Supp. at 836 (finding
35); see id. at 831-832 (findings 5-14); id. at 834 (finding 48).  See also
AER 124-6; 73-6; 104-110; 65-9; 140-1; 183-6; 188.

42	AER 187-9; 74-5.

43	See Reno, 117 S. Ct. at 2335. ("There are thousands of [newsgroups],
each serving to foster an exchange of information or opinion on a particular
topic running the gamut from, say the music of Wagner to Balkan politics to
AIDS prevention to the Chicago Bulls.").

44	AER 16-7; 75; 174-5; 178.

45	AER 350-4.

46	For instance Professor Bernstein plans to consult Mr. Peter Gutmann,
who Professor Bernstein believes lives in New Zealand.  Mr. Gutmann has
extensive experience in practical cryptography.  AER 10.

47	Even if Professor Bernstein were not a teacher, however, his
scientific publication may not be restrained.  A person's right to
participate in scientific discussion does not depend on his job title;
Albert Einstein was a patent office clerk when he developed his theory of
relativity.

48	117 S. Ct. at 2348.  Compare Appellants' Brief at 36 ("the EAR's
provisions regarding encryption technology 'leave ample alternative channels
of communication' ").

49	Appellants correctly point out that the speech "at the center of this
prior restraint claim is not the messages scrambled by encryption software,
but rather encryption software itself."  Appellants' Br. at 15 (emphasis in
original). However, if the government sought to regulate the use of
envelopes in the transmission of First Class mail, there would nevertheless
be a First Amendment issue as to those correspondents who would use
envelopes to secure the privacy of their letters.  The ability to use
encryption operates in the same way for electronic mail.

50	18 U.S.C. Sect. 798.  See also 22 C.F.R. Sect. 121.01 ("speech
scramblers").

51	Wooley v. Maynard, 430 U.S. 705, 714 (1977), quoting West Virginia
State Board of Education v. Barnette, 319 U.S. 624, 637 (1943).

52	Barnette, 319 U.S. at 642.

53	E.g.,  Bartels v. State of Iowa, 262 U.S. 404 (1923);  Meyer v.
Nebraska, 262 U.S. 390 (1923).  The foreign language prohibitions in Bartels
and Meyer had been prompted by the hostilities with Germany in World War I.
But the Meyer Court held that, despite the "[u]nfortunate experiences during
the late war," the asserted state interest in domestic security could not
justify encroachment on fundamental rights.  262 U.S. at 401-02.

54	McIntyre v. Ohio Elections Commission, 115 S. Ct. 1511, 1524 (1995);
Talley v. State of California, 362 U.S. at 64.

55	Bates v. City of Little Rock, 361 U.S. 516 (1960);  NAACP ex. rel
Patterson v. State of Alabama, 357 U.S. 449 (1958).  See also Lamont v.
Postmaster General, 381 U.S. 301 (1965).

56	277 U.S. 438, 464 (1928).

57	Foreshadowing the types of surveillance now possible in a computer
based society, Justice Brandeis warned that "[w]ays may some day be
developed by which the Government, without removing papers from secret
drawers, can reproduce them in court, and by which it will be enabled to
expose to a jury the most intimate occurrences of the home."  He concluded
that failure to extend constitutional protection to the novel question of
wiretapping would mean that "[r]ights declared in words might be lost in
reality."  Id. at 473-74 (internal quotations omitted).

58	United States v. Robel, 389 U.S. 258, 263-64 (1967), quoting Home
Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934).

59	Indeed, the government in New York Times even asserted an interest
much like that claimed here.  It argued to the D.C. Circuit that suppression
was necessary to preserve government secrets relating to cryptography,
including the fact that the United States could decode North Vietnamese
communications. See John Cary Sims, Triangulating the Boundaries of the
Pentagon Papers, 2 Wm. & Mary Bill of Rights J. 341, 449 (1993).

60	Statement of Vice Admiral J. M. McConnell, Hearing on The
Administration's Clipper Chip Key Escrow Encryption Program, S. Hrg.
103-1067, 103d Cong., 2d Sess. (May 3, 1994) at 155, attached as Exhibit B
to Appellee's Opposition to Emergency Motion to Stay.

61	The government asserts that the First Amendment may not apply "with
full force in this case" because of the "foreign locus of the EAR's export
controls and the national concerns that underlie them."  Appellants' Brief
at 24 n.9, relying on Haig v. Agee, 453 U.S. 280 (1981).  Haig involved the
revocation of a passport of a former CIA employee whose actions resulted in
episodes of violence and led to several deaths.  453 U.S. at 285 & n.7. The
Supreme Court held that the revocation was consistent with  Near v.
Minnesota, 283 U.S. 697 (1931), which permits such actions to prevent
"actual obstruction to its recruiting service or the publication of the
sailing dates of transports or the number and location of troops."

62	Technical assistence requires mere "intent to assist in the
development abroad" of cryptography.  15 C.F.R. Sect. 744.9(a).

63	See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 539 (1989) (need for
scienter requirement); NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).
Brandenburg has been applied to bar civil liability for speech that
described dangerous or harmful acts. Herceg v. Hustler Magazine, 814 F.2d
1017 (5th Cir. 1987), cert. denied, 485 U.S. 959 (1988); Rice v. Paladin
Enterprises, Inc., 940 F.Supp. 836 (D. Md.), appeal docketed, No 96 2412
(4th Cir. 1996).

64	Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 644 (1994)
(citation omitted).

65	Further, the fact that Internet publishing is a form of mass
communication is not a proper basis for restricting it.  Florida Star, 491
U.S. at 540-541 ("Where important First Amendment interests are at stake,
the mass scope of disclosure is not an acceptable surrogate for injury.").

66	AER 362.  See also GAO, Communications Privacy:  Federal Policy and
Actions, GAO/OSI-94-2, Nov. 4, 1993 at 27; Encryption Foreign Availability:
How Much Evidence Do You Need? Export Control News, July 31, 1994 at 5;
Declaration of David Balenson submitted as Exhibit G to Appellee's
Opposition to Motion for Emergency Stay.

67	See Anthony L. Clapes, Confessions of an Amicus Curae: Technophobia,
Law, and Creativity in the Digital Arts, 19 Dayton L. Rev. 903, 941 (1994)
("In the early days of programming, programs were written by humans directly
in object code form.  Object code could obviously be read in those days.").

68	ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F. Supp. 1310, 1320 (N.D.
Ill. 1990), also cited by Appellants, similarly holds that computer programs
are "original works" entitled to federal copyright protection, making no
distinction between source code and object code.