July 22, 1997
Thomas C. Barbour, Esq.
Office of the Chief Counsel
Bureau of Export Administration
Department of Commerce
14th and Constitution Avenue, N.W., Room 3839
Washington, D.C. 20230
Re: Commodity Classification Request for Contents (Z101908)
of Computer Diskette as described below
Dear Mr. Barbour:
This letter of explanation is with respect to the Commodity Classification Request ("the Request") submitted on behalf of this firm's client, Philip R. Karn, Jr. of San Diego, California. The subject of the Request is the contents of the computer diskette ("the Diskette") which are described below.
The purpose of the Request is to confirm our conclusion that the information on the Diskette is not subject to the Export Administration Regulations ("the EAR"). Specifically, on the basis of the legal authority cited below, we request the following classifications:
We recognize that the Diskette includes source code for "strong" encryption algorithms which might normally be treated as EI items, but we rely on several arguments for seeking an exemption from export controls for this particular item. The information at issue is the same source code that was published in the first edition of Applied Cryptography ("the Book"). More specifically, the contents of the Diskette are an exact duplicate, in digitized form, of the cryptographic source code that is printed in Part V of the Book.
The Book was authored by Bruce Schneier and published by John Wiley & Sons, Inc. in 1994. We understand that approximately 30,000 copies were sold worldwide.
Additional specific information about the contents of the Book and the Diskette is contained in the court papers on file in the litigation now pending in the United States District Court for the District of Columbia and styled Karn v. Department of State, et al., Civ. A. No. 95-1812 (LFO). We refer you to those pleadings for all relevant details.
The Request, as you know, is intended to comply with the decision of the Court of Appeals in that case which remanded the matter to the District Court for consideration in light of the December, 1996 transfer of cryptographic export control responsibility from the Department of State to the Department of Commerce.
There are three reasons why we believe this software should not be subject to export controls:
The legal arguments for our positions have been fully briefed in the referenced litigation, as well as in the decision of Judge Patel in Bernstein v. Department of State, 922 F.Supp. 1426 (N.D. Cal. 1996) (Bernstein I) and Bernstein v. Department of State, 945 F.Supp. 1279 (N.D. Cal. 1996) (Bernstein II). These materials should be considered an integral part of this request.
If the Department is unable to determine that the contents of the Diskette are not subject to the EAR, then we request in the alternative that it issue an export license permitting its unrestricted distribution including placement on a Website for unrestricted distribution.
Please contact either of us for any additional information you may require. Pursuant to the Court's order in this case, we request a formal determination within 30 calendar days.
Thank you for your attention in this regard.
Very truly yours, Kenneth C. Bass, III Thomas J. Cooper
cc: Anthony J. Coppolino, Esq.