The State Department has apparently had a policy for some time of allowing printed publications to be exported, based on First Amendment concerns, but of refusing to allow similar software to be exported. Phil filed two CJ requests (see below, "Specific Commodity Jurisdiction Requests"), one for a popular textbook on cryptography, the other for a floppy containing the source code from the book. The State Department allowed export of the book, but denied export of the floppy.
Phil filed an administrative appeal on June 9, 1994, challenging both the details of the distinction between the paper and floppy copies, and the Constitutionality of restricting the export of the floppy version. Despite the regulations requiring 30-day response to appeals, Phil was told to expect a decision in mid-September 1994. On September 20, Martha C. Harris responded with a letter, stating that . . . ``your appeal raises particularly important and difficult issues. . . . I wanted to convey to you personally, as we have conveyed to [your lawyer], the care with which we are reviewing your appeal.'' She promised a response Real Soon Now.
Her final response to the appeal was sent on October 7, 1994. It reaffirms that they believe the floppy to be a munition, legally controllable, and worth controlling. With masterful vagueness, it also says, ``We have also reviewed your statement that the export of your disk is protected by the First Amendment to the Constitution, and have concluded that continued control over the export of such material is consistent with the protections of the First Amendment.'' It goes on to reaffirm how much time and care they have taken in crafting the response, and thanks Phil and his lawyer for their patience.
As specified in the "final response", the decision can be appealed up the Executive Branch command-chain. If administrative appeals have not been taken far enough, the court might send Phil back to the Executive Branch before actually looking at the issues. Phil's lawyers chose to send an appeal to Mr. Thomas E. McNamara, Assistant Secretary in the Department of State, on December 5, 1994. The appeal reiterates the Constitutional and factual arguments in more detail, and concludes, "We are taking this step only because ... we may be required to appeal to you before going to court. We hope that our pessimism proves unfounded, but the decisions in this case to date do not justify any expectation that a favorable decision is, as a practical matter, available within the Executive Branch." There is also an HTML version of this appeal, though I find it harder to read than the plain text.
On April 28, 1995, Phil's lawyers sent another letter to Mr. McNamara, saying that they have received no response since their early December letter. They believed that the delay appears to be a deliberate part of the Administration's attempt to chill the First Amendment-protected activities of Phil and others. They concluded with a promise to file suit by June 15 unless they receive a favorable decision by then. They received a reply from Mr. McNamara on June 13. As expected, it was useless. Phil's attorneys responded on July 19 with a letter pointing out the basic unaddressed inconsistency in the State Department's position (that a printed paper copy is exportable, but a floppy is not). The letter also promised that "we intend to seek judicial review in the near future".
On September 21, 1995, they filed the complaint (case #1:95CV01812) in the DC Federal District Court. It asks 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." and that "the determination to subject the Diskette to the export licensing controls of ITAR is unlawful in violation of the [Administrative Procedures Act]", which penalizes arbitrary or capricious acts and abuses of discretion by the Government."
The judge ordered on October 6 that the government file their motion for summary judgement by November 15, Phil's lawyers file their opposition to that motion by December 8, with the government replying by December 13. All these filings are available at Phil's web page below. As of January 18, the judge has not yet decided whether to grant summary judgement, i.e. whether to throw out the case.
Phil Karn's web page is the definitive source of information on the case.
The whole investigation was dropped after three years with a short, useless press release in January 1996. The case is now closed and Phil need not fear further prosecution.
Daniel J. Bernstein invented a cryptosystem called Snuffle while a graduate student in math at UC Berkeley. He asked the State Department whether he could publish a short paper describing the new algorithm, and two pages of C-language source code that implement encryption and decryption using it. They denied his request. For fear that his paper had been lumped in with the software, he then sent in five separate requests asking separately whether he could publish the paper, the encryption source code, the decryption source code, an English description of how to encrypt, and an English description of how to decrypt. The State Department consolidated and denied all five requests. He also administratively appealed his initial request. The State Department never responded.
Mr. Bernstein sent various informal letters to the government, trying to get a reasonable response. It didn't work. Mr. Bernstein then spoke with the Electronic Frontier Foundation, who found him a pro-bono legal team and agreed to cover the out-of-pocket costs of suing to overturn the export controls. Cindy Cohn of McGlashan & Sarrail is the lead attorney.
EFF maintains the full archive of all the documents in the case. See in particular the Legal subdirectory.
See "Court Cases" above for further details about this CJ Request.
Personally I think it'll be a collector's item. I got mine! Your grandchildren will be amazed that a supposedly free country's government ever tried to control cryptography. But you'll have the hard-copy evidence of the lengths we had to go to to debunk this ridiculous and oppressive policy. Here is the book's web page and an MIT Press order form. It's ISBN 0-262-24039-4, by Philip R. Zimmermann, US$60.
MIT Press has reportedly submitted a CJ request for the book, but has not yet received a response from the State Department.