[ORAL ARGUMENT SCHEDULED FOR JANUARY 10, 1997]
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PHILIP R. KARN, Jr.,
DEPARTMENT OF STATE and THOMAS E. McNAMARA,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF FOR THE APPELLANT
SUMMARY OF ARGUMENT
The brief filed by the Executive Branch Appellees effectively concedes that their trial court memoranda contained significant factual assertions not supported by the record. In an effort to avoid an evidentiary hearing on the critical disputed facts, the Appellees advance what is, quite frankly, a bold and shocking argument. Appellees argue that when a plaintiff challenges agency action on substantive due process grounds a court can never hold an evidentiary hearing in order to determine whether, as a factual and legal matter, the action is arbitrary, capricious or irrational. That argument is fundamentally flawed and rests on an unprecedented reliance on dicta in prior decisions. Moreover, the argument overlooks the fact that in this case the challenge to the agency action is based on both the First Amendment and the Due Process Clause, an important distinction expressly noted in the cases relied upon by the Appellees but overlooked in their argument.
Appellees also argue that the applicable First Amendment standard is the intermediate scrutiny test of United States v. O'Brien rather than the strict scrutiny standard applied in cases such as New York Times v. United States. That argument overlooks the Supreme Court's recent articulation of the applicable standards in Turner Broadcasting System, Inc. v. FCC. The analysis in that case shows why, in this case, the agency decision is in fact based on the content of the disputed diskette, a content-based regulatory action that invokes the New York Times standard of review.
The decision of the district court in this case rests on an improper resolution of disputed material facts on summary judgment. Just as the Supreme Court reversed the summary judgment of the 3-judge panel in Turner Broadcasting and remanded the case for a fact-finding hearing, so should this Court vacate Judge Richey's decision and remand for a hearing, if not direct entry of judgment in favor of the Plaintiff.
I. The Executive Agrees that All of the Issues Raised Are Justiciable and that Karn Has Standing To Litigate the Agency's Interpretation of the Technical Data Regulations
In our opening brief, we argued that the District Judge erred in concluding that any of the questions raised were "political questions" which should not be decided because they touch on issues of national security. (Appellant's Brief at 6-13) The Appellees do not argue that any of the issues raised here are non-justiciable. We also argued that Judge Richey erred in raising, sua sponte, an issue of standing in declining to rule on Mr. Karn's facial challenge under the First Amendment to the ITAR regulations. (Appellant's Br. at 36-37) Again the Executive officials do not take issue with our position and do not attempt to defend that aspect of Judge Richey's ruling.
Based on the absence of any argument in the opposing brief, we submit that the parties are in agreement on two issues: 1) the "political question" doctrine does not apply; and 2) Mr. Karn has standing to challenge the ITAR regulations, both facially and as applied to him. In short, all of the issues presented are within the scope of this Court's jurisdiction, as a matter of both constitutional and prudential factors, and should be decided on the merits.
II. By Its Silence the Executive Effectively Concedes that Certain Factual Assertions Advanced Below Lack Any Foundation in the Record and Cannot be Relied Upon
In our opening brief we noted that counsel for the Appellees advanced several factual arguments in the trial court without evidentiary support. (Appellant's Br. at 8) Those assertions appear to have had significant influence on the trial judge since they went to the heart of the supposed injury to national security that has been invoked to justify this restriction.
The unsupported assertions below included:
1. Export of the diskette "would pose a far greater threat to national security than does the appearance of some source code on the Internet." (Defs. Reply Memo. at 3)
2. "Export of the diskette would provide foreign recipients with . . . a tool that would help shield their communications from national security surveillance by the United States." (Def. Reply Memo. at 9)
3. Export of the diskette "can be expected to result in far more actual use of encryption overseas." (Def. Reply memo. at 11)
4. Export of the diskette "would clearly expose the important government interests at stake to more harm." (Def. Reply Memo. at 12)
Appellees do not provide any record support for those factual assertions in their Brief and cannot do so because there is no record support. Undaunted by the absence of any evidence, Appellees continue to advance factual arguments that are the creation of counsel and are not supported by the record.
Thus, for example, Appellees tell this Court that "the unrestricted export of computer diskettes containing cryptographic source codes poses a greater risk to the government's SIGINT capabilities than does the export of published materials."1 (Appellees' Br. at 13) In a similar vein Appellees' counsel state that "a diskette containing source code . . . provides a materially easier and more reliable basis for performing encryption than does a printed book or a periodical containing the same source code." (Id.) Agency counsel says this "fact" is "manifest" when it actually is a contested material fact. Insofar as the dissemination of information, including source code, can make it "easier" to "perform encryption," we submit that the detailed technical and practical explanations of computer-based cryptography that are contained in the Applied Cryptography book that the Executive freely permitted to be exported contains far more useful and reliable information than that contained on the diskette. Moreover, an evidentiary hearing would, we submit, produce evidence that the functional distinction between the utility of the source code in the book and that on the diskette is minimal and immaterial.
A similar unfounded factual assertion is voiced at page 24 of the Appellees' brief when their counsel asserts that "widespread use of strong cryptographic software abroad is more likely to result from the export of cryptographic source code on diskettes than from the export of the same source code in printed form." While the Executive officials may believe this prediction, they have not supplied any evidentiary basis for their belief, much less established it as a fact that can justify the difference in regulation at issue in this case. By repeatedly stating that the difference between the functionality of the book and that of the diskette is "material," Appellees' counsel presumed the favorable resolution of one of the principal factual issues genuinely in dispute.
These repeated assertions, in the face of a record that simply will not support them, demonstrates how the Executive is attempting to avoid any examination of the facts and, instead, induce this Court to rely on unsupported assertions of counsel instead of evidence tested in a due process hearing.
III. The Executive's Effort to Preclude an Evidentiary Hearing Rests on a Flawed Analysis of the Caselaw
In response to our argument that the distinction drawn here between "text on paper" and identical "text on a diskette" is utterly irrational, the Executive argues that when a substantive due process claim is advanced, Article III courts are precluded, as a matter of law, from holding an evidentiary hearing to examine the factual basis, if any, for the agency's distinction. (Appellees' Br. at 19-21) This remarkable effort to curtail judicial review rests on a fundamental misreading of the cases relied upon by the Appellees. The argument is constructed through misleading use of selected quotations taken out of context. When the cited cases are considered in their entirety, the error in the Executive's argument becomes apparent.
The Appellees cite three cases for their novel proposition: FCC v. Beach Communications, 508 U.S. 307, 113 S. Ct. 2096 (1993); Steffan v. Perry, 41 F.3d 377 (D.C. Cir. 1994); and National Paint & Coatings Ass'n v. City of Chicago, 45 F.3d 1124 (7th Cir. 1995). The issue in Beach Communications was whether the Cable Communications Policy Act of 1984 had drawn a rational distinction "between facilities that serve separately owned and managed buildings and those that serve one or more buildings under common ownership or management." 508 U.S. at ___, 113 S. Ct. at 2099. In reviewing this Equal Protection challenge, the Supreme Court reviewed the legislative history and found several goals that Congress sought to achieve. It then applied the established rule that, in areas of economic policy, the party challenging the constitutionality of a statute or regulation bears the burden of showing the absence of "every conceivable basis" for the classification." 508 U.S. at ____, 113 S. Ct. at 2102, quoting Lenhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973). Writing for the Court, Justice Thomas noted that Congress is not required "to articulate its reasons for enacting a statute" and it is "irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature." Beach, supra, 508 U.S. at ____, 113 S. Ct. at 2102. Because the legislature is presumed to act constitutionally, and because legislative findings -- unlike those of the judicial branch -- do not require a foundation in an evidentiary record, the Court stated that a legislative classification "is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Beach Communications, supra, 508 U.S. at 315.
In sum Beach involved a lowest tier (rational basis) Equal Protection challenge to a legislative classification. It did not involve either administrative decisions or First Amendment issues. Nothing in the Beach opinion suggests that courts are precluded, as a matter of law, from holding an evidentiary hearing when a party challenges the rationality of an agency decision and raises substantial First Amendment concerns. The only discussion in that opinion of the relevance of "evidence" related to the burden the Executive Branch's counsel must bear, not what evidence the plaintiff's counsel may introduce.
This Court's decision in Steffan follows a similar course in the context of an agency action. There the plaintiff challenged a regulation of the Naval Academy that required the dismissal of midshipmen who stated that they were homosexual, even if there was no evidence of homosexual conduct. This Court, in a sharply divided en banc opinion, reversed a panel decision and upheld the regulation against an Equal Protection challenge. In the course of that opinion the majority stated that "[t]he government . . . 'has no obligation to produce evidence to sustain the rationality of a [regulatory] classification.'" Id. at 684. As was the case in Beach, this Equal Protection case was also "not a First Amendment case." Id. at 682.
Beach Communications and the majority opinion in Steffan both stand for the principle that the government has no burden to come forward with evidence to support the rationality of a legislative or administrative classification challenged on non-First Amendment grounds2 as a denial of equal protection, but neither decision even remotely suggests that it extends to a preclusion of an evidentiary hearing when the plaintiff make an initial evidentiary showing of legislative -- or executive -- irrationality, particularly in the context of both Due Process and First Amendment challenges.
The only case cited by the Appellees that actually considered whether it was proper to hold an evidentiary hearing when government action is challenged on Due Process grounds is the decision by a panel of the Seventh Circuit in National Paint & Coatings Ass'n v. Chicago, supra. That case overturned a district court decision, rendered after a six-day evidentiary hearing, which had invalidated, on Due Process grounds, Chicago ordinances banning the sale or possession of spray paint. In the course of reversing, Judge Easterbrook wrote that "[o]utside of the realm of 'heightened scrutiny' there is . . . never a role for evidentiary proceedings." Id. at 1127, emphasis added. This absolutist view is, we submit. simply wrong and adds a radical new gloss to Justice Thomas' statement that legislative classifications are "virtually unreviewable" under Equal Protection grounds, save only for instances of "invidious discrimination." Beach, supra, at 2102-03.. But even if the Seventh Circuit decision were good law it would be error to preclude an evidentiary hearing in this case.
What was at issue in National Paint, as Judge Easterbrook expressly recognized, was the validity of an economic regulation. As he stated, "[o]ne could scan the most wild-eyed radical's list of candidates for the status of 'fundamental right' without encountering spray paint." Id. at 1129 Given that fact, and the fact that Judge Easterbrook expressly excluded "heightened scrutiny" cases from his proscription on evidentiary hearings, there is no reason to deny such a hearing in this case where a First Amendment right is at issue.
In Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445 (1994), the Supreme Court recently reiterated the important role judicial fact-finding must play in the review of constitutional attacks on government actions regulating speech, even in challenges to congressional decisions where the level of deference due is at its greatest:
That Congress' predictive judgments are entitled to substantial deference does not mean, however, that they are insulated from meaningful judicial review altogether. On the contrary, we have stressed in First Amendment cases that the deference afforded legislative findings does "not foreclose our independent judgment of the facts bearing on an issue of constitutional law. . . . This obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. Rather it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence. 114 S. Ct. at 2471 (citation omitted).
The Court therefore reversed the three-judge panel's summary judgment, concluded expressly that "there are genuine issues of material fact still to be resolved" and remanded the case for explicit factual findings to redress the "paucity of evidence indicating that broadcast television is in jeopardy"; the lack of "any findings concerning the actual effects of must-carry on the speech of cable operators"; and "'the availability and efficacy of constitutionally acceptable less restrictive means' of achieving the Government's asserted interests." Id. at 2472. That action by the Supreme Court, in a case decided under intermediate scrutiny principles, completely refutes the Executive's argument that the Judicial Branch is precluded from holding an evidentiary hearing on the constitutionality of an agency action, especially when, as is the case here, the applicable First Amendment standard is strict scrutiny. The Supreme Court in its reversal of the Turner summary judgment necessarily approved of holding evidentiary hearings in cases like this one which raise First Amendment, as well as Due Process, issues.
If this Court were to accept the argument advanced here by the Executive, it would in effect mean that the promise of judicial review and invalidation of irrational, arbitrary and capricious regulations is a hollow one indeed. How can a plaintiff expect to carry the substantive Due Process burden in this case without the opportunity to prove through evidence that source code in the book is functionally equivalent to that on the diskette, or that banning exports of this diskette is irrational in light of the availability of the same code in foreign countries on Internet sites? Is the Court expected to take judicial notice of such factual assertions? Can it be said that the science of cryptography and the functioning of computers is so widely understood that the "facts" asserted here require no evidentiary exploration?
To state these questions is, we submit, to show why the principle of judicial review and invalidation of irrational government action requires, in cases like this one, access to an evidentiary hearing. If plaintiffs like Mr. Karn cannot present technical evidence for judicial scrutiny, the process becomes a Kafkaesque proceeding which inherently precludes invalidation of agency action.
We submit the process of determining the rationality of a challenged executive action consists of more than simply analyzing the logic of the arguments made by agency counsel in defense of the decision. A decision may indeed appear logical and rational if the factual assertions on which the decision is based are valid. If, however, the operative facts are not valid, then it is necessarily true that a decision based on those flawed facts is irrational. It is not conceivable that an agency would issue a decision and state that it is based on a whim and has been issued without regard to the factual underpinnings. Agency actions will almost always be explained by reference to certain presumed facts.3 When those facts have been determined by the agency through a due process hearing , a court need not re-try the facts. But where, as is the case here, there has been no opportunity to determine the operative facts before the agency, the most elementary concept of fairness requires an opportunity to test the factual underpinnings of agency action in court.
We do not suggest a rule that would require a court to hold an evidentiary hearing whenever a plaintiff challenges agency action as arbitrary, capricious or irrational. But where, as is the case here, the plaintiff makes a prima facie showing of irrational government action, Due Process itself requires an evidentiary hearing.
IV. The Executive's Arguments for Applying the First Amendment Intermediate Scrutiny Standard Are Erroneous
Here, as they did below, the Executive officials argue that the First Amendment standard to be applied is the "intermediate level of scrutiny" articulated in cases such as Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) and United States v. O'Brien, 391 U.S. 367 (1968), instead of the "heightened scrutiny" applied in New York Times v. United States, 403 U.S. 713 (1971). The argument is flawed.
Appellees advance two arguments in support of their position. They first argue that "the ITAR does not license the export of cryptographic source code because of its informational content . . . ." (Appellees' Br. at 40) But the fact if the matter is that is the ITAR singles out cryptographic source code only on the basis of its informational content. If the book Applied Cryptography or the diskette had not included cryptographic source code, there would have been no question about application of the ITAR. Non-cryptographic source code which is not related to military articles is not regulated under the ITAR. Cryptographic source code is reviewed, on a case-by-case basis, to determine - based on its content - whether it can or cannot be exported in digital form.4
The Appellees next argue that decision to prohibit export of this diskette is "content neutral" because it is not based on any "disagreement with the message" the diskette conveys. (Appellees' Br. at 41-42) The Appellees' reliance on cases such as Ward v. Rock Against Racism, 491 U.S. 781 (1989) and Clark, supra, to support that assertion is misplaced.
The Supreme Court has recently clarified the tests that determine whether a particular regulation of speech is subject to "heightened scrutiny" because it is "content based" or "intermediate scrutiny" because it is not. Turner Broadcasting, supra, involved a challenge to the "must carry" provisions of the Cable Television Consumer Protection and Competition Act of 1992. Writing for the Court, Justice Kennedy explained at length the analysis that must be applied to government regulation of speech. He first re-stated the fundamental principle that "subject only to narrow and well-understood exceptions, [the First Amendment] does not countenance government control over the content of messages expressed by private individuals." Id. at 2458. He then noted that laws related to the "content" of speech are reviewed with "the most exacting scrutiny" while "regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny." Id. at 2459, citing inter alia Clark, supra.
Justice Kennedy then proceeded to acknowledge that "[d]eciding whether a particular regulation is content-based or content-neutral is not always a simple task." Id. He first noted that the "principle inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." Id., citing Ward, supra, editing in original. He then noted that "while a content-based purpose may be sufficient . . . to show that a regulation is content-based, it is not necessary to such a showing in all cases." Turner at 2459, emphasis added.
The principle that we believes governs this case was clearly stated by Justice Kennedy: "the mere assertion of a content-neutral purpose [is not] enough to save a law which, on its face, discriminates based on content." Id. Thus the Appellees' repeated assertion that it does not control this diskette because of any disagreement over the contents, but only because of its function, is not a verbal cure-all for First Amendment infirmities.
The parties here agree that the ITAR treats cryptographic source codes differently than all other software. It is also agreed that "weak" cryptographic source code can be exported without an ITAR license while "strong" cryptographic source code cannot.5 It is, most importantly, agreed that the determination of whether particular source code falls in the permitted or prohibited category is made after a review by the NSA of the content of the source code.6 Because the decision whether or not permit to export of software depends on this content review, the decision is subject to heightened scrutiny.
The applicability of the strict scrutiny or clear and present danger test in this case is most clearly shown by comparison this case with the Executive's efforts to suppress dissemination of the means for making a hydrogen bomb that were litigated in United States v. Progressive, Inc., 467 F.Supp. 990 (W.D. Wis. 1979). In that case the Progressive Magazine intended to publish a detailed article on how to make an H-bomb. The Executive sought - and obtained - an injunction against publication, asserting that "the national security . . . could be jeopardized by the publication of the article." Id. at 992. That suppression was not based on any "disagreement" with the political viewpoint of the magazine7 or the contents of the article, but with the perceived consequences because of what some readers might do once they learned how to make the bomb.
Precisely the same rationale is present here. The Executive asserts that it is not acting on the basis of any "viewpoint discrimination" or policy disagreement with the contents of Mr. Karn's diskette, but only because of a fear that foreigners might take the diskette and use it to create encryption programs that could then be used to encrypt messages and thereby harm the national security.
What is most relevant is that the Progressive court applied the same "clear and present danger" test that was applied in New York Times8. Nothing in subsequent First Amendment decisions in any court suggests that the analysis applied in that 1979 case is any less valid today.
The ultimate disposition of the efforts to suppress speech in the Progressive litigation is of particular pertinence to this case. The Executive there obtained an injunction against publication because it had made a sufficient showing of a substantial risk of genuine harm and had persuaded the judge that "concepts [in the article] that are vital to the operation of the hydrogen bomb [are not] in the public realm." Id. at 993. The magazine then produced evidence that the supposedly non-public aspects of the H-bomb recipe had in fact been available for several years in the open public library of the government's Los Alamos Scientific Laboratory. United States v. Progressive, 486 F.Supp. 5, 7 (W.D. Wis. 1979). The government admitted it had placed those articles in its public library, but contended that the release had been a "mistake" and that they had been removed from the open shelves during the course of the litigation. Id. Although the district court concluded that the continuation of the injunction was still warranted, 486 F.Supp at 9, the Executive decided that in light of its own prior release and the fact that the suppressed material had by then been published in the Milwaukee Sentinel9 it would no longer seek to restrain publication and it therefore agreed to vacate the injunction after the Progressive noted an appeal. See 610 F.2d 819 (appeal dismissed)
In the H-bomb recipe litigation the Department of Justice recognized that it would be irrational and ineffectual to continue to enjoin publication of information that was already widely available. What is most irrational about the position taken by the Appellees in this case is that they remain unwilling to permit export of the Karn diskette despite the undeniable fact that the identical digital files are available on foreign Internet sites. in light of that undisputed fact it is beyond understanding why continued restrictions are placed on this diskette.
Appellees argue that the fact that files are available on the Internet does not matter because "some foreign users would be more likely to use encryption source code coming directly from a reliable source such as Karn, rather than depending on source code on a publicly accessible Internet site whose contents might be feared to have been inadvertently or intentionally altered." Appellees' Br. at 28. That basis for regulation was, in the first place, never articulated by the Department of State and it cannot be created by counsel and invoked to defend the agency decision. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962). But more fundamentally, it is quite simply an absurd argument. The source codes in issue, it should be remembered, are exact copies of text in a book that is widely available around the world. It is a trivial task to compare the source code in the Internet-available files with the text of the book to determine whether the digital codes have been altered. There is simply no factual basis for suggesting that the Internet-available files are less reliable than those on the Karn diskette.10
V. The Regulation of the Diskette Fails
the O'Brien Test
Even if the O'Brien test were applicable, this application of the ITAR to this diskette could not be sustained. As the Appellees acknowledge, the O'Brien test requires a reviewing court to consider both the alleged "substantial government interest" and the "restrictions on alleged First Amendment freedoms" to determine whether the restriction "is no greater than is essential to the furtherance" of the alleged governmental interest. O'Brien, supra, 391 U.S. at 377, emphasis added. The Appellees cast the issue as if it were one of balancing the value to national security of the entire SIGINT program against Mr. Karn's interest in exporting this particular diskette. But that is not the appropriate constitutional balancing that is required here.
It should not be forgotten that the Executive has decided to allow the free export of the book with its source code listings and its extensive textual explanation of how to use those, and other, codes to build functioning encryption systems. Whatever interest the Executive may have had to restrict dissemination of that scientific knowledge, that interest disappeared as a basis for regulation when they allowed the book to depart our shores. The only governmental interest at issue is a de minimus interest in not having the identical information available in digital form on a diskette exported by Philip Karn.
It is beyond debate that the information itself is pubically available. Indeed it was that very public availability that led the Department of State to conclude that Applied Cryptography was in the public domain and could not be regulated under the ITAR. It is also beyond debate that the same information contained on the diskette is available, in digital form, from foreign Internet sites. Appellees' continue to assert that they nonetheless have an interest in prohibiting export of the Karn diskette. The only conceivable articulation of that interest is that despite the worldwide availability of the identical source code in both printed and digital form, the government has an interest in precluding export of the identical information in the particular form of a Mylar disk in a plastic jacket. That interest is, we submit, either irrational or so de minimus as to be an insignificant justification for any restriction on First Amendment freedoms.
This is not, as the Appellees' Brief seems to contend, a case about the wisdom, utility or rationality of the ITAR as a whole, or about the regulation of cryptographic products under the ITAR. This is a specific case about a specific regulatory decision. It is that decision, not some general policy, that must be viewed critically and evaluated against the applicable legal standard. The Appellees' argument is as if the facts in O'Brien had been that the Selective Service System permitted draft registrants to "fold, spindle and mutilate" their draft cards in protest against the Vietnam War, but had drawn the line at using a match instead of scissors to express their anti-war sentiments. We submit that on these undisputed facts of this case, the asserted governmental interest does not justify the regulation. If the Executive officials genuinely contend that this diskette poses such a different threat from that created by the dissemination of the book itself, let them prove that contention in a forum where it can be tested, not through judicial reliance on untested assertions of their counsel.
For the reasons stated in our opening Brief and in this Reply, the District Court's judgment should be vacated and the case remanded either with directions to enter judgment for the plaintiff, or to proceed after appropriately limited discovery to a fact-finding hearing.
Kenneth C. Bass, II, Bar No. 52985
Thomas J. Cooper Bar No. 213215
Venable, Baetjer, Howard & Civiletti, LLP
1201 New York Avenue, N.W.
Washington, D.C. 20005
Counsel for Appellant
Philip R. Karn, Jr.
Date: November 27, 1996
1The only evidence in the record on this issue is the declaration of Mr. Karn that because the identical source code, in digital form, is readily available on the Internet, the "restrictions on [export of] this diskette [are] immaterial with regard to the ability of foreigners to shield communications from surveillance." (Supp. Karn Decl. ¶ 6)
2The majority opinion in Steffan expressly recognized that the plaintiff had not "claimed a First Amendment violation." 41 F.3d at 692. Just as the majority in that case concluded that First Amendment precedents were "inapposite," so also is the evidentiary hearing dicta in Steffan inapplicable to this First Amendment case.
3It is important to note that in this case the agency officials did not make any of the factual findings that have been urged by their counsel in court. Indeed the entire national security rationale has been created by counsel in the defense of this litigation and was never articulated by the agency when it decided the issue. That fact alone is a sufficient reason to ignore the arguments of Appellees' counsel. See, e.g., Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962
4On November 15, 1996, the President issued an Executive Order requiring the eventual transfer of regulatory jurisdiction over cryptographic software from the State Department to the Commerce department. That action, we submit, has no effect on the decision in this case. The Order does not set a time limit for issuance of the regulations necessary to effectuate the transfer and until those regulations are issued, jurisdiction over this diskette remains with the Department of State and the diskette continues to be treated as a "munition" under the ITAR. Moreover, there is no suggestion in the Order that the transfer of jurisdiction to Commerce would effect any substantive change in the regulation of this diskette. Nothing in the November 15 announcements, or the October 1, 1996, statement of the Vice-President which preceded it suggests that the Karn diskette will be exportable under the yet-to-be-issued regulations.
5This well-established regulatory distinction is most clearly articulated in the Guidelines for Submitting a Commodity Jurisdiction Request that were submitted as an attachment to the Declaration of William J. Lowell. (JA00025)
6In this context the Appellees are simply wrong when they assert that source code communicates to computers and not to human beings. In footnote 8 they set forth a line from the DES algorithm source code. They then proceed to advise the court, in more readily comprehensible terms, what that code does, once it is translated into object code. What is most significant is that the Appellees, or at least their NSA advisors, can readily understand the meaning - to a human being - of the code. What Appellees gloss over is that fact that no computer can "understand" or act upon that code. It must first be complied or interpreted by a separate program into a binary language that a computer can understand. When the code set out in Appellees' footnote 8 is so compiled, it is translated into the following binary expression:
11010001 11001000 (D1 C8 in hexadecimal notation)
That compiled language is, we admit, a language that "speaks to computers" and not to humans. It cannot be understood without the benefit of a computer to disassemble the binary expression into a human-readable language. However, compiled object code is not what is at issue here. As we noted perviously, source code is a language developed for communications with humans not with computers. (Appellant's Br. at 23) The Appellees' disagreement with this position raises a factual, not legal issue.
7The magazine justified publication of the article in part on its belief that spreading the information would advance the cause of nuclear non-proliferation. 467 F.Supp at 994. The government agreed with the goal, while the court believed that "nuclear non-proliferation would be harmed, not aided, by publication of [the] article." Id.
8The district judge in Progressive concluded that the Executive "met the test enunciated by two Justices in the New York Times case, namely grave, direct, immediate and irreparable harm to the United States." 467 F.Supp. at 996.
9See 486 F.Supp. at 7-9.
10It is simple to take the Karn diskette and use a computer to make a byte-by-byte comparison with the files on the Internet. To the extent that the Appellees might argue that the text of the book contains errors which may have been corrected in the files on the Karn diskette, it is important to note that the Second Edition of Applied Cryptography corrected the errors in the source code listings in the first edition and the second edition has also been widely distributed in foreign countries. Thus there is no impediment to a quick and easy determination that the Internet-available files are reliable digital copies of the actual code.