________________________________________ ) PHILIP R. KARN, JR. ) 7431 Teasdale Avenue ) San Diego, California 92122 ) ) Plaintiff, ) ) CASE NUMBER 1:95CV01812 v. ) ) JUDGE: Charles R. Richey U.S. DEPARTMENT OF STATE ) 2201 C Street, N.W. ) DECK TYPE: Civil General Washington, D.C. 20520 ) ) DATE STAMP: 09/21/95 and ) ) THOMAS E. MCNAMARA ) Assistant Secretary ) Bureau of Political-Military Affairs ) U.S. Department of State ) Room 7325 ) 2201 C. Street, N.W. ) Washington, D.C. 20520 ) ) Defendants. ) ) ________________________________________)
1. Plaintiff PHILIP R. KARN, JR. is a resident of San Diego, California.
2. Defendants, U.S. DEPARTMENT OF STATE and THOMAS E. MCNAMARA, Assistant Secretary of the U.S. Department of State of the United States of America, proceeded against in his official capacity, are charged with, inter alia, the administration of the Arms Export Control Act ("The Act"), 22 U.S.C. 2778 et seq., and the International Traffic in Arms Regulations ("The ITAR") 22 C.F.R. Subchapter M. (Subsequent citations to the ITAR are with a section designator only.)
3. This is an action for a declaratory judgment pursuant to 28 U.S.C. 2201, for the purpose of determining a question of actual controversy between the parties as is herein more fully set forth.
4. Jurisdiction of this action is based on 28 U.S.C. 1331, in that it is a civil action arising under the laws of the United States, and the First and Fifth Amendments to the Constitution of the United States.
5. Venue is proper in this Court pursuant to 28 U.S.C. 1391, in that this is a civil action against an officer of the United States and the decisions, which are the subject of this action, were made within the District of Columbia.
6. Plaintiff KARN hereby realleges and incorporates by reference, as though fully set forth herein, the allegations of paragraphs 1-5.
7. The ITAR is implemented by the Office of Defense Trade Controls ("the Office").
8. Under § 120.2 of the ITAR, the Office is responsible for reviewing and determining whether particular products and technologies are defense articles, as defined at § 120.6, technical data, as defined at § 120.10, or defense services, as defined at § 120.9, and, therefore, subject to the prior export licensing requirements of the ITAR. Such articles, services and technical data are described in § 121.1, which is styled the United States Munitions List ("the USML"). Products and technologies, which are neither defense articles nor defense services, as defined in the ITAR, are subject to the export licensing jurisdiction of the Department of Commerce.
9. The ITAR provides a procedure for the determination of whether a particular product or technology is subject to its licensing requirements. See § 120.4. Upon receipt of a written Commodity Jurisdiction Request, a determination is made as to whether an item is included on the USML. A "commodity jurisdiction" procedure entailing consultations among the Departments of State, Commerce, and Defense is used to make the determination.
10. Under § 120.10, information that is in "the public domain" is not subject to the ITAR's export licensing controls.
11. Pursuant to § 120.4, Plaintiff KARN on February 12, 1994 initially submitted a Commodity Jurisdiction Request for Applied Cryptography, a book ("the Book") by Bruce Schneier, which was published in this country.
12. The Book was published by John Wiley & Sons, Inc. It is available from most bookstores that carry computer books and has a list price of $44.95. It has sold approximately 20,000 copies worldwide.
13. The Book contains computer source codes, detailed descriptions and instructions on how to use a wide variety of cryptographic algorithms, and explains how computer programmers designing computer applications, networks and storage systems can use cryptography to maintain the privacy and security of computer data.
14. Cryptography is a mathematical technique used to protect the secrecy of electronic communications between individuals by scrambling, or encrypting, communications so that only particular recipients with a "key" to decrypt the communications may decipher them. Cryptographic software programs that protect the confidentiality of electronic communications are created by using programming instructions, or source code algorithms. These are sophisticated mathematical equations that are expressed in computer source code and converted into computer programs. Cryptography has a variety of commercial uses including confidentiality of electronic mail, computer software, voice, video and other information in digitized form.
15. Part Five of the Book contains a full-text actual source code listing for fourteen cryptographic algorithms in the C programming language, which were developed by various sources at various times using both private and public sources of funding. A two- disk cryptographic source code set ("the Diskette Set"), which includes the same codes printed on pages 456-570 of Part Five of the Book, is offered for sale on its last page.
16. Binary copies of several of the source code algorithms published in Part Five of the Book are also publicly available from anonymous file transfer protocol ("FTP") sites outside the United States.
17. In a letter dated March 2, 1994, the Office concluded that the Book, including the source code in Part Five, was in "the public domain." The Book was accordingly transferred to the export jurisdiction of the Department of Commerce, where it is eligible for export to all destinations under a general license. (A general license is one which is generally available and need not be specifically applied for in advance of any export.)
18. The March 2, 1994 ruling from the Office expressly did not extend to the Diskette Set.
19. On March 9, 1994, Plaintiff KARN submitted a second Commodity Jurisdiction Request ("the Second Filing") for a determination as to whether a Diskette ("the Diskette") containing only the source code information, as set out in Part Five of the Book, was subject to the export licensing requirements of the ITAR. The only difference between the information contained on the Diskette and Part Five of the Book is the medium-used: magnetic pulses on Mylar instead of inked characters on paper.
20. Plaintiff KARN is desirous of exporting the Diskette to fulfill his interest in the dissemination of cryptographic information.
21. The Office responded to the Second Filing on May 11, 1994 and stated that the Diskette is a defense article under Category XIII(b)(1) of the USML and, therefore, subject to the export licensing jurisdiction of the ITAR.
22. On June 7, 1994 Plaintiff KARN appealed the May 11, 1994 determination of the Office to the Deputy Assistant Secretary of State for Export Controls ("the DAS").
23. On October 7, 1994 the DAS responded to Plaintiff's appeal by affirming the Office's determination and concluding that the Diskette was a defense article because it was cryptographic software, notwithstanding the fact that the information it contains is identical to that in the Part Five of the Book.
24. Pursuant to § 120.4(g), the DAS's determination was appealed to the Assistant Secretary of State for Political-Military Affairs on December 5, 1994.
25. On June 13, 1995 the Assistant Secretary of State for Political-Military Affairs ("the Assistant Secretary") reaffirmed the DAS's determination but failed to address the fact that the information contained in the Diskette is identical to that in Part Five of the Book, which was already found not to be subject to the licensing jurisdiction of ITAR.
26. No additional appeals mechanism is set forth in the ITAR with respect to commodity jurisdiction determinations.
27. Plaintiff has exhausted his administrative remedies, therefore, this matter is "ripe" for judicial review.
28. The application of the ITAR provisions to Plaintiff KARN, which require the application for and issuance of a license prior to any export, has caused him unusual hardship and irreparable injury in that he has been and is currently being denied the free exercise of constitutional rights as more fully stated below. Plaintiff has no adequate remedy at law for these injuries; accordingly, he is entitled to declaratory relief.
29. The actions of Defendants restricting the dissemination of information contained on the Diskette, which is identical to the information contained in Part Five of the Book, are arbitrary and capricious, constitute an abuse of discretion and are otherwise not in accordance with the Administrative Procedure Act ("the APA") at 5 U.S.C. 706(2)(A).
30. As set forth below, the actions of Defendants restricting the dissemination of information contained on the Diskette, which is identical to the information contained in Part Five of the Book, are contrary to Plaintiff's constitutional rights and, therefore, not in accordance with the APA at 5 U.S.C. 706(2)(B).
31. The Office's determination, and its subsequent reaffirmation by the DAS, and the Assistant Secretary subjecting the Diskette to export licensing controls when the information it contains is identical to the published text of Part Five of the Book, which was deemed not subject to such export controls, is irrational, arbitrary, and capricious. These arbitrary and capricious actions violates Plaintiff's Fifth Amendment right to substantive due process.
32. The Office's determination, and its subsequent reaffirmation by the DAS and the Assistant Secretary, to control the export of the Diskette containing information set forth in a published book is a violation of Plaintiff's fundamental First Amendment right to free speech.
33. As applied by Defendants, the ITAR requires Plaintiff to apply for a license to export the Diskette containing information identical to that in Part Five of the Book. Therefore, as applied to Plaintiff in this instance, the prior licensing requirement of the ITAR operates as a prior restraint on Plaintiff's disclosure of ideas and information in violation of his First Amendment rights to free speech.
34. As applied to Plaintiff, § 120.4 dealing with the determination of whether particular products and technologies are defense articles, is unconstitutionally overbroad and vague, as it includes within its scope speech protected by the First Amendment, namely material contained in the Book, thereby chilling the exercise of free speech rights.
WHEREFORE, Plaintiff KARN prays for judgment against Defendants, U.S. DEPARTMENT OF STATE and MCNAMARA, as follows:
A. Declaring that the provisions of the ITAR, as applied to Plaintiff KARN, be declared null and void, of no effect, as unconstitutional under the Fifth and First Amendments.
B. Declaring that the determination to subject the Diskette to the export licensing controls of ITAR is unlawful in violation of the APA at 5 U.S.C. 706(2)(A) & (B).
C. For attorneys fees incurred herein.
D. For costs of the action incurred herein and
E. For such other and further relief as the Court deems just and proper.
[signed] Kenneth C. Bass, III D.C. Bar #: 52985 Venable, Baetjer, Howard & Civiletti, LLP 1201 New York Avenue, N.W. Suite 1000 Washington, D.C. 20005 (202) 962-4857 Date: September 21, 1995 [signed] Thomas J. Cooper D.C. Bar #: 213215 Venable, Baetjer, Howard & Civiletti, LLP 1201 New York Avenue, N.W. Suite 1000 Washington, D.C. 20005 (202) 962-4857 Counsel for Plaintiff