From: John Gilmore <gnu@toad.com>
Date: Mon, 25 Sep 95 01:35:10 PDT
To: cypherpunks
Subject: Phil Karn's legal case is filed; here's the Complaint.
Message-ID: <9509250835.AA05551@toad.com>
MIME-Version: 1.0
Content-Type: text/plain


Full info is at http://www.qualcomm.com/people/pkarn/export/index.html.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________
                                                )
PHILIP R. KARN, JR.                             )
7431 Teasdale Avenue                            )
San Diego, California  92122                    )
                                                )
                Plaintiff,                      )
                                                )
        v.                                      )
                                                )
U.S. DEPARTMENT OF STATE                        ) Case 1:95CV01812
2201 C Street, N.W.                             )
Washington, D.C.  20520                         )
                                                )
        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.                    )
                                                )
____________________________________            )

COMPLAINT

COMES NOW the plaintiff PHILIP R. KARN, JR., by and through his undersigned
counsel of record, and for his causes of action against the named Defendants
states the following:

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.

Jurisdiction and Venue

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.

Causes of Action

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.

Prayer for Relief

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.