United States District Court,
District of Columbia.
Philip R. KARN, Jr., Plaintiff,
v.
U.S. DEPARTMENT OF STATE, and Thomas B. McNamara, Defendants.
Civil Action No. 95-01812 (CRR).
March 22, 1996.
Exporter brought action against State Department and assistant Secretary of State for Political-Military Affairs, challenging designation of computer diskette containing cryptographic software as a "defense article" subject to export limitations. Defendants moved to dismiss Administrative Procedure Act (APA) challenge and moved for summary judgment on plaintiff's constitutional claims. The District Court, Charles R. Richey, J., held that: (1) designation of diskette as a "defense article" was not subject to judicial review; (2) export limitation did not violate plaintiff's free speech rights; and (3) export limitation did not violate due process.
Motion to dismiss granted; motion for summary judgment granted.
[1] Administrative Law and Procedure 
651
Appropriate
standard for determining whether a particular statute precludes judicial review
of agency action is determined not only from its express language, but also
from structure of statutory scheme, its objectives, its legislative history,
and nature of administrative action involved.
[2] War and National Emergency 504
State
Department's designation of computer diskette containing cryptographic
algorithms as a "defense article" for purposes of Arms Export Control
Act (AECA) and International Traffic in Arms Regulations (ITAR), which
subjected disk to export controls, was not subject to judicial review. 5
U.S.C.A. § 706(2)(A); Arms Export
Control Act, § 38(a)(1), (h), as
amended, 22
U.S.C.A. § 2778(a)(1), (h); 22
C.F.R. § 120.4.
[3] War and National Emergency 504
Commodity
jurisdiction procedure, by which State Department designates certain items as
"defense articles" subject to export controls and applies those
designations, is not subject to judicial review. 5
U.S.C.A. § 706(2)(A); Arms Export Control Act, § 38(a)(1), (h), as amended, 22
U.S.C.A. § 2778(a)(1), (h); 22
C.F.R. § 120.4.
[4] War and National Emergency 504
Challenge
to State Department's designation of computer diskette as a "defense
article" subject to export controls was not a challenge that commanded
heightened presumption in favor of judicial review; claim did not raise a facial challenge to
agency's action in context of agency's statutory authority, but instead
disputed whether diskette constituted a defense article subject to licensing
restrictions. 5
U.S.C.A. § 706(2)(A); Arms Export
Control Act, § 38(a)(1), (h), as
amended, 22
U.S.C.A. § 2778(a)(1), (h); 22
C.F.R. § 120.4.
[5] Constitutional Law 2551
(Formerly 92k72)
Constitutional
challenges to State Department's determination that particular items are
"defense articles" subject to export controls are not barred by
statute precluding judicial review of such determinations. Arms Export Control Act, § 38(h), as amended, 22
U.S.C.A. § 2778(h).
[6] Constitutional Law 1517
(Formerly 92k90(1))
If a
regulation of speech is content-based, it is presumptively invalid. U.S.C.A.
Const.Amend. 1.
[7] Constitutional Law 1512
(Formerly 92k90(3))
[7]
Constitutional Law 1514
(Formerly 92k90(3))
[7]
Constitutional Law 1515
(Formerly 92k90(3))
If a
regulation of speech is content-neutral, government may justify regulation if
regulation is within constitutional power of government, furthers an important
or substantial government interest, and is narrowly tailored to the
governmental interest. U.S.C.A.
Const.Amend. 1.
[8] Constitutional Law 1490
(Formerly 92k90(3))
Government's
rationale for regulation of expression dictates the level of scrutiny to be
applied, regardless of form of speech or expression regulated. U.S.C.A.
Const.Amend. 1.
[9] Constitutional Law 1616
(Formerly 92k90.1(1))
[9] War and
National Emergency 504
Government
regulation of export of computer diskette containing cryptographic software was
content-neutral and was thus subject to standards applicable to content-neutral
regulations; government was not
regulating export of diskette because of expressive content of comments and/or
source code, but instead was regulating diskette because of the belief that the
combination of encryption source code on machine readable media would make it
easier for foreign intelligence sources to encode their communications. U.S.C.A.
Const.Amend. 1.
[10] War and National Emergency 501
Federal
government possesses power to regulate international arms traffic.
[11] Constitutional Law 1616
(Formerly 92k90.1(1))
[11] War and
National Emergency 504
Regulation
of export of computer diskette containing cryptographic software was narrowly
tailored to the goal of limiting proliferation of cryptographic products and
did not violate exporter's free speech rights.
U.S.C.A.
Const.Amend. 1;
Arms Export Control Act, §
38(a)(1), as amended, 22
U.S.C.A. § 2778(a)(1); 22
C.F.R. § 120.4.
[12] Constitutional Law 695
(Formerly 92k42.1(1))
Exporter
of computer diskette containing cryptographic software that government had
designated as subject to export controls lacked standing to challenge
constitutionality of regulations that regulated export of technical data, where
government had not applied the "technical data" restrictions to
exporter. 22
C.F.R. § 120.10.
[13] Federal Civil Procedure 103.2
Court is
obliged to examine standing of plaintiff to assert his claim, even if neither
party raises the issue.
[14] War and National Emergency 504
Regulations
of the export of technical data were not overbroad; State Department had limited its application
of regulations to conform to an earlier court decision. U.S.C.A.
Const.Amend. 1;
22
C.F.R. § 120.10.
[15] Constitutional Law 3895
(Formerly 92k251.3)
Substantive
due process provided by Fifth Amendment, absent assertion of a fundamental
right, merely requires a reasonable fit between governmental purpose and means chosen to advance that
purpose. U.S.C.A.
Const.Amend. 5.
[16] Constitutional Law 4240
(Formerly 92k320.5)
[16] War and
National Emergency 504
Government's
regulation of export of computer diskette containing cryptographic software did
not violate due process; government had
an interest in preventing proliferation of cryptographic software to foreign
powers, and regulation of the export of such software was a rational means of
achieving that goal. U.S.C.A.
Const.Amend. 5;
Arms Export Control Act, §
38(a)(1), as amended, 22
U.S.C.A. § 2778(a)(1); 22
C.F.R. § 120.4.
*2 Kenneth
C. Bass, III and Thomas
J. Cooper, Attorneys, Venable, Baetjer, Howard
& Civiletti, L.L.P., Teresa
Dondlinger Trissell, of counsel, Washington,
D.C., for Plaintiff.
Anthony J. Coppolino, Trial Attorney, Vincent
M. Garvey, Deputy Branch Director, Eric. H.
Holder, United States Attorney, and Frank
W. Hunger, Assistant Attorney General, all of the
U.S. Department of Justice, Washington, D.C.,
for Defendants.
MEMORANDUM OPINION
CHARLES R. RICHEY, District Judge.
INTRODUCTION
This case presents a classic example of how
the courts today, particularly the federal courts, can become needlessly
invoked, whether in the national interest or not, in litigation involving
policy decisions made within the power of the President or another branch of
the government. The plaintiff, in an
effort to export a computer diskette for profit, raises administrative law and
meritless constitutional claims because he and others have not been able to
persuade the Congress *3 and the Executive Branch that the technology at
issue does not endanger the national security.
This is a "political question" for the two elected branches
under Articles I and II of the Constitution.
The case arises out of the defendants'
designation of the plaintiff's computer diskette as a "defense
article" pursuant to the Arms Export Control Act (AECA), 22
U.S.C. § § 2751-2796d, and the International Traffic in Arms Regulations (ITAR),
22 C.F.R. § § 120-130. The plaintiff alleges that the defendants'
designation of a diskette containing source codes for cryptographic algorithms [FN1] as a defense article subject to the export controls set
forth in the ITAR, when the defendant deemed a book containing the same source
codes not subject to said export controls, is arbitrary and capricious and an
abuse of discretion in violation of the Administrative Procedure Act (APA), 5
U.S.C. § 706(2)(A). The plaintiff
also raises a number of constitutional claims.
Specifically, the plaintiff alleges that the defendants' regulation of
the diskette violates the plaintiff's First Amendment right to freedom of
speech and arbitrarily treats the diskette differently than the book in
violation of the plaintiff's Fifth Amendment right to substantive due process.
FN1. "Cryptography"
is "the art and science of keeping messages secure ... [, and] the process
of disguising a message in such a way as to hide its substance is called
encryption." Bruce Schneier, Applied
Cryptography, at 1 (1994). A
"cryptographic algorithm" is a mathematical function or equation that
can be applied to transform data into an unintelligible form (e.g., into
ciphertext). Joint St. ¶ 15. "Cryptographic source code"
expresses a cryptographic algorithm in computer programming language, such as
the "C" language, and is a precise set of operating instructions to a
computer that, when compiled into object code by using commercially available
software, enables a computer to perform cryptographic functions. Joint St. ¶ ¶ 16.
The
defendants move to dismiss the plaintiff's APA challenge based on a provision
in the AECA precluding the judicial review of the designation of items as
defense articles subject to the AECA.
The defendants move for summary judgment on the ground that the
plaintiff's First Amendment and Fifth Amendment rights have not been violated
by the defendants' regulation of his computer diskette under the AECA and the
ITAR.
Upon consideration of the filings by the
parties, the entire record herein, the applicable law thereto, and for the
reasons set forth below, the Court shall grant the defendants' Motion to
Dismiss the plaintiff's APA claim as nonjusticiable, and the Court shall grant
the defendant's Motion for Summary Judgment with respect to the plaintiff's
First and Fifth Amendment claims.
BACKGROUND
On February 12, 1994, the plaintiff submitted
to the Department of State a commodity jurisdiction request [FN2] for the book Applied Cryptography, by Bruce
Schneier. The book Applied
Cryptography provides, among other things, information on cryptographic
protocols, cryptographic techniques, cryptographic algorithms, the history of
cryptography, and the politics of cryptography. Part Five of Applied
Cryptography contains source code for a number of cryptographic
algorithms. This first commodity
jurisdiction submission did not include "machine-readable media" such
as a computer diskette or CD-ROM. Lowell
Dec., Tab. 4.
FN2. Parts 120 and
121 of the ITAR provide a "commodity jurisdiction" procedure so that
an exporter may obtain a determination whether the export of an item falls
within the jurisdiction of the Department of State pursuant to the ITAR, or the
Department of Commerce pursuant to the Export Administration Regulations. See 22
C.F.R. § § 120.4 and 121.1, category XIII(b)(1), Note.
On March 2, 1994, in response to the
plaintiff's commodity jurisdiction request, the Department of State's Office of
Defense Trade Controls (ODTC) determined that the book is not subject to the
jurisdiction of the Department of State pursuant to the ITAR. Joint St. ¶
4. The ODTC's response
explicitly stated, however, that this determination did not extend to the two
diskettes referenced in the book and available from the author--said disks
apparently containing the encryption source code printed in Part Five of Applied
Cryptography. Joint St. ¶ 5.
On March 9, 1994, the plaintiff submitted a
commodity jurisdiction request for a diskette *4 containing the source
code printed in Part Five of Applied Cryptography (the "Karn
diskette"). The request stated
that "the diskette contains source code for encryption software that
provides data confidentiality" and that
"the software on this diskette is provided for those who wish to
incorporate encryption into their applications." Joint St. ¶
7. The ODTC responded, stating that the Karn diskette is subject to the
jurisdiction of the Department of State pursuant to the ITAR and the AECA
because the diskette "is designated as a defense article under category
XIII(b)(1) of the United States Munitions List." Joint St. ¶
8; Lowell Decl. ¶ 15, Tab 9.
Pursuant to procedures set forth in 22
C.F.R. § 120.4(g), the plaintiff appealed the commodity jurisdiction
determination concerning the source code diskette to the Deputy Assistant Secretary
of State by letter dated June 10, 1994.
Joint St. ¶ 9. The Deputy Assistant denied the plaintiff's
appeal by letter dated October 7, 1994.
Joint St. ¶ 10. The plaintiff appealed this denial to the
Assistant Secretary of State for Political-Military Affairs, defendant Thomas
McNamara, by letter dated December 5, 1994.
Defendant McNamara denied the plaintiff's appeal on June 13, 1995,
reaffirming the earlier determinations that the Karn diskette "contains
cryptographic software [and] is designated as a defense article under Category
XIII(b)(1)." Joint St. ¶ 12;
Lowell Decl. ¶ 22, Tab 14.
The plaintiff filed his Complaint in this
Court on September 21, 1995, and the defendants filed their Motion to Dismiss
or, in the Alternative, for Summary Judgment on November 15, 1995, containing
the declarations of William P. Crowell,
Deputy Director of the National Security Agency, and William J. Lowell,
Director of the Office of Defense Trade Controls, Bureau of Political-Military
Affairs, Department of State. The
plaintiff filed an Opposition thereto on December 11, 1995, including the
declarations of Barbara Tuthill, a Secretary at Venable, Baetjer & Howard,
Philip R. Zimmerman, a software developer, and plaintiff Philip R. Karn,
Jr. The defendants Replied on December
18, 1995. The plaintiff filed a Supplemental
Memorandum on December 22, 1995, containing the supplemental declaration of
plaintiff Karn, in order to correct alleged misstatements made by
defendants. The defendants filed a
Response on January 16, 1996.
I. THE COURT SHALL DISMISS THE PLAINTIFF'S
APA CHALLENGE TO THE DEFENDANTS' DESIGNATION OF THE PLAINTIFF'S DISK AS A
"DEFENSE ARTICLE" BECAUSE THE ARMS EXPORT CONTROL ACT PRECLUDES
JUDICIAL REVIEW.
A. Pursuant to AECA, The President
Designated The Karn Diskette As A "Defense Article" Subject To Export
Regulation Under The ITAR.
The AECA authorizes the President to control
the export of "defense articles":
The President is authorized to designate those items which
shall be considered as defense articles and defense services for the purposes
of this section and to promulgate regulations for the import and export of such
articles and services. The items so
designated shall constitute the United States
Munitions List.
22
U.S.C. § 2778(a)(1). The President
delegated this authority to the Secretary of State, who then promulgated the
ITAR. See 22
C.F.R. § 120.1(a).
The ITAR contains 10 subparts, including
"Purpose and definitions," contained in Part 120, and "The
United States munitions list," contained in Part 121. [FN3] Part 121,
containing the munitions list, describes those items designated "defense
articles" by the Secretary of State.
The descriptions of such defense articles do not include specific
manufacturer names or highly-detailed descriptions, but instead contain
relatively general descriptions, such as the following: "Military tanks, combat engineer
vehicles, bridge launching vehicles, half tracks and gun carriers"; [FN4] "Military*5 training equipment
including but not limited to attack trainers, radar target trainers ... and
simulation devices related to defense articles"; [FN5] "Body
armor specifically designed, modified or equipped for military use ..."; [FN6] and "Radar systems, with capabilities
such as (i) Search, (ii) Acquisition, (iii) Tracking...." [FN7] Likewise, the munitions list specifically
addresses cryptographic systems and components and includes the following description:
FN3. Other subparts
address the registration of exporters, the licensing
of exporters, general policies and procedures, and violations and penalties.
FN4. See 22
C.F.R. § 121.1, category VII(b).
FN5. See id.,
category IX(a).
FN6. See id.,
category X.
FN7. See id.,
category XI.
(b) Information Security Systems and equipment, cryptographic
devices, software, and components specifically designed or modified therefor,
including: (1) Cryptographic ...
systems, equipment, assemblies, modules, integrated circuits, components or
software with the capability of maintaining secrecy or confidentiality of
information or information systems....
22 C.F.R. §
120.4, category XIII.
Part 120 of the ITAR provides assistance for
interpreting the terms used in the munitions list. The "commodity jurisdiction
procedure" is explained and provided for in this definitional section, and
the ITAR directs that the ODTC use the procedure "if doubt exists as to
whether an article or service is covered by
the U.S. Munitions List." 22
C.F.R. § 120.4. As set forth
previously, the plaintiff requested the use of this procedure for the book and
the diskette. The ODTC determined that
the diskette was covered by the munitions list but that the book was not.
The plaintiff argues that the diskette, like
the book, is not a "defense article" covered by the munitions
list. The plaintiff contends that
pursuant to sections 125.1 [FN8] and
120.11,
[FN9] the diskette is in the "public
domain" and therefore is not subject to the ITAR. See Plaint's Opp. 19-21. However, the
defendants contend that the diskette does not fall within the "public
domain" exemption because said exemption only applies to "technical
data" which, according to the defendants, does not include
cryptographic software. See
Defs' Reply 21-22 (citing 22
C.F.R. § § 120.10(a)(4), [FN10] 120.11 and 121.8(f) [FN11]).
FN8. 22
C.F.R. § 125.1 provides:
(a) The controls of this part apply to the export of
technical data and the export of classified defense articles. Information which is in the public domain
(see § 120.11 of this
subchapter and § 125.4(b)(13)) is not
subject to the controls of this subchapter.
FN9. 22
C.F.R. § 120.11 provides: (a) Public
domain means information which is published and which is generally accessible
or available to the public....
FN10. 22
C.F.R. § 120.10 provides:
(a) Technical data means, for purposes of this
subchapter: ... (4) Software as defined
in § 121.8(f) of
this subchapter directly related to defense articles.
FN11. 22
C.F.R. § 121.8(f) provides:
Software includes but is not limited to the system functional design,
logic flow, algorithms, application programs, operating systems and support
software for design, implementation, test, operation, diagnosis and
repair. A person who intends to export
software only should, unless it is specifically enumerated in § 121.1 (e.g.,
XIII(b)), apply for a technical data license pursuant to part 125 of this
subchapter.
B. Section
2778(h) Of The Arms Export Control Act
Precludes Judicial Review Of The Designation Of The Karn Diskette As A
"Defense Article."
The AECA explicitly bars judicial review of
the President's designation of an item as a defense article:
The designation by the President (or by an official to whom
the President's functions under subsection
(a) of this section have been duly delegated), in regulations issued under this
section, of items as defense articles or defense services for purposes of this
section shall not be subject to judicial review.
22
U.S.C. § 2778(h). The plaintiff
argues, however, that the Court should construe this provision so narrowly as
to cover only the act of listing items on the munitions list contained in Part
121 of the ITAR and not the determination whether an item, in this case the
plaintiff's diskette, is actually covered by the language of the munitions list
pursuant *6 to the definitional provisions contained in Part 120 of the
ITAR. The plaintiff bases this argument
upon the presumption in favor of judicial review and the language of § 2778(h) when
read in conjunction with § 2778(a) of the
AECA.
[1] It is often stated that there is a presumption in favor of
judicial review of agency action absent "clear and convincing
evidence" of legislative intent to preclude it. Bowen
v. Michigan Acad. of Family Phys.,
476 U.S. 667, 671, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986). However, the
Supreme Court has cautioned that this standard "is not a rigid evidentiary
test but a useful reminder to the courts that, where substantial doubt about
the congressional intent exists, the general presumption favoring judicial
review of administrative action is controlling." Block
v. Community Nutrition Inst.,
467 U.S. 340, 351, 104 S.Ct. 2450, 2457, 81 L.Ed.2d 270 (1984). The presumption may be overcome, and the
appropriate standard for determining whether "a particular statute
precludes judicial review is determined not only from its express language, but
also from the structure of the statutory scheme, its objectives, its
legislative history, and nature of the administrative action
involved." Id.
at 345, 104 S.Ct. at 2453.
[2] Section
2778(h) expressly bars judicial review of the
President's (or his designee's--in this
case, the Secretary of State's and/or ODTC's) designation of items as defense
articles. In the case at bar, the
Department of State designated the Karn diskette as a defense article by
listing "cryptographic software" in Part 121 to the ITAR and then
confirming that the diskette was covered by this description pursuant to the
definitional provisions to the ITAR contained in § 120.4. The plaintiff argues, however, that because § 2778(a)(1)
authorizes the designation of "defense articles and.... [t]he items so
designated shall constitute the United States Munitions List," and because
the bar to judicial review appearing in § 2778(h) only
applies to "the designation ... in regulations ... of items as defense
articles," judicial review is precluded only for the act of listing items
as defense articles on the munitions list published in Part 121 of the
ITAR. Therefore, according to the
plaintiff, any interpretation and application of the descriptions on the
munitions list by the agency are reviewable.
See Plaint's Opp. at 36-37.
[3] The Court finds the
plaintiff's reading strained and unreasonable.
It is far more reasonable to read § 2778(a)(1) and (h) to preclude judicial review for the designation of items as defense
articles pursuant to the language of the munitions list and the procedures
provided for interpreting the list, all set forth in the ITAR--in other words,
if the defendants follow the procedures set forth in the ITAR and authorized by
the AECA for designating an item as a defense article, such item is a part of
the munitions list. The defendants did
precisely that. Furthermore, even if
the plaintiff's reading of the statute were plausible, the Court finds that any
ambiguity would be dispelled by the objective of the AECA, the structure of the
United States export scheme, and the nature of the plaintiff's challenge.
To parse the statute as the plaintiff suggests
makes little sense in light of the objectives of the AECA. The AECA was enacted to permit the Executive
Branch to control the export and import of certain items in order to further
"world peace and the security and foreign policy" of the United
States. 22
U.S.C. § 2778(a)(1). Designating an
export such that it is subject to the AECA and the ITAR requires first
describing the type of item in the regulations, and second, if asked by a
potential exporter, confirming that the item in question is or is not covered
by such description. The commodity
jurisdiction procedure provides the latter function, as provided for explicitly
both in the definitional section of the ITAR and in the munitions list with respect to cryptographic software. See 22
C.F.R. § § 120.4 and 121.1, category XIII, (b)(1), Note. Determining whether an item is covered by
the munitions list is critical to the President's ability to designate and
control the export of those items the Executive Branch considers to be defense
articles. Simply put, the Court
discerns from the legislative scheme that Congress has precluded judicial
review of the commodity jurisdiction procedure.
*7 Judicial non-reviewability of the
defendants' commodity control decision is also consistent with the structure of
the United State's export control scheme.
Items not regulated by the ITAR but which have both commercial and
potential military application--"dual use" items--are regulated by
the Secretary of Commerce pursuant to the Export Administration Regulations (EAR),
15 C.F.R. § § 768-99, which were
promulgated pursuant to the Export Administration Act (EAA), 50
App. U.S.C. § § 2401-20. Like the
munitions list contained in Part 121 of the ITAR, the EAR contains a
description of items, the commodity control list (CCL), subject to the
licensing requirements of the EAR. See
15 C.F.R. part 799. Similarly, the EAA
also contains a judicial review prohibition.
Section 2412(a) of the EAA states that "the functions exercised
under this Act are excluded from the operation of [the APA.]" In a criminal appeal before the Ninth Circuit,
brought by a defendant who exported laser mirrors without obtaining a license
from the Secretary of Commerce pursuant to the EAA and EAR, the court held that
section 2412(a) of the EAA precluded
judicial review of the Secretary of Commerce's determination that the type of
laser mirrors exported by the defendant were in fact covered by the language of
the CCL. See United
States v. Spawr Optical Research, Inc.,
864 F.2d 1467 (9th Cir.1988), cert. denied,
493
U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989). In other words, under the EAR and EAA
judicial review is precluded for the act of describing items on the CCL and for
the act of determining whether an item is covered by the CCL descriptions. [FN12]
FN12. Based on Dart
v. United States,
848 F.2d 217 (D.C.Cir.1988), the plaintiff
contends that courts in this Circuit construe finality provisions more narrowly
than the Ninth Circuit did in Spawr.
See Plaint's Opp. at 41-2.
This is incorrect. Dart
involved a facial challenge to the agency's action, which is quite different
and requires greater scrutiny than the type of challenge brought in Spawr. See discussion of facial challenges, infra.
In addition to the obvious analogy between the
schemes of the EAA and the AECA, these statutes are in fact part of a singular
export scheme, in that the commodity jurisdiction procedure set forth in § 120.4 of the ITAR not only determines whether
an item is a defense article covered by the munitions list, it also determines
whether an item is covered by the EAR. See
Lowell Decl., Tab 2. In fact, Part 121 of the ITAR, containing
the published munitions list which the plaintiff concedes is not subject to
judicial review, states the following:
NOTE: A procedure
has been established to facilitate the expeditious transfer to the Commodity
Control List of mass market software products with encryption that meet specified
criteria regarding encryption for the privacy of data ... Requests to transfer
commodity jurisdiction of mass market software products designed to meet the
specified criteria may be submitted in accordance with the commodity
jurisdiction provisions of § 120.4.
22 C.F.R. §
121.1, Category XIII(b)(1). To
achieve consistency between the EAA and the AECA the Court concludes that decisions
made pursuant to the commodity jurisdiction procedure should not be
reviewable. Furthermore, considering
the deference afforded the President in matters of foreign policy, it would be
strange indeed if Congress precluded judicial review of the determination that
an item has merely a potential for military use (i.e., subject to the
commodity control list), but permitted review of the determination that an item
was in fact a defense article (i.e., subject to the munitions list).
The Court has reviewed House
Report No. 101-296, Senate Report No. 101- 173,
and the Congressional Record for legislative history regarding the
Anti-Terrorism and Amendments to the Arms Export Control Act of 1989, which
added § 2778(h) to the
AECA. The legislative history regarding
§ 2778(h) is
scant. However, one of the stated
purposes of the Act--to eliminate "overlapping standards that lead to
confusion and misinterpretation," including "identifying which arms
are subject to restrictions," see S.Rep. No. 173, 101st Cong., 1st
Sess. 2 (1989); see also H.R.Rep.
No. 296, 101st Cong., 1st Sess. 3 (1989) U.S.Code Cong. & Admin.News 1989
at 1350, 1351, 1352--further supports finding consistency between the AECA and
EAA.
[4] Finally, the plaintiff's challenge is not of a nature that
commands a heightened *8 presumption in favor of judicial review. Courts have held that "the presumption
of judicial review is particularly strong" where the plaintiff alleges
that the agency facially violated its authority delegated under the statute. Dart
v. United States,
848 F.2d 217, 223 (D.C.Cir.1988). One rationale for this general rule is that
such "facial" challenges typically raise "a discrete issue,
unrelated to the facts of the case, that only needs to be resolved once,"
and therefore, entertaining the challenge does not "open the floodgates to
litigation." Id.; see also, Bowen
v. Michigan Acad. of Family Phys.,
476 U.S. 667, 680 n. 11, 106 S.Ct. 2133, 2141 n. 11, 90 L.Ed.2d 623 (1986); Johnson
v. Robison,
415 U.S. 361, 370, 94 S.Ct. 1160, 1167, 39 L.Ed.2d 389 (1974). Another rationale
for presuming the reviewability of such facial challenges is that, "[w]hen
Congress limits its delegation of power,
courts infer (unless the statute clearly directs otherwise) that Congress
expects this limitation to be judicially enforced." Dart,
848 F.2d at 223.
In the case at bar, the plaintiff's APA claim
does not raise a facial challenge to the agency's action in the context of the
agency's statutory authority, [FN13] but instead disputes whether the Karn diskette constitutes
a defense article subject to the licensing restrictions of the ITAR. Permitting
judicial review of the plaintiff's APA claim would in fact open the floodgates
to litigation; every time a potential
exporter is informed through the commodity jurisdiction procedure that the item
he wishes to export (or has already exported) is designated in the munitions
list, the exporter could seek judicial review of that decision.
FN13. However, the
plaintiff does raise constitutional claims which the Court addresses, infra.
Based on the authorities cited in the
plaintiff's Opposition, the plaintiff maintains that it is incumbent upon
courts to essentially torture the language of finality provisions in order to
permit judicial review whenever possible. See Plaint's Opp. 34-38,
41-42. Each of the cases cited by the
plaintiff involved either legislative history [FN14] or a statutory scheme [FN15] that raised substantial
doubt as to whether Congress intended to preclude judicial review. Moreover, some of the cases often involved a
facial challenge [FN16] to a statute or to the agency's action. Thus, the Court finds that the authorities
relied upon by the plaintiff are inapposite to the circumstances presented in
the present case. For the reasons
discussed above (i.e., the express language of the AECA, the arms export
control scheme, and the nature of the plaintiff's challenge) the Court holds
that Congress has barred judicial review.
FN14. See Lindahl
v. Office of Personnel Mgt.,
470 U.S. 768, 778- 91, 105 S.Ct. 1620, 1626-33, 84 L.Ed.2d 674 (1985) (Court refused to expand preclusion of finality
provision beyond that previously applied by courts for almost 30 years where
legislative history of new provision acknowledged past application and failed
to express disagreement or amend wording of said finality clause).
FN15. See McNary
v. Haitian Refugee Center,
498 U.S. 479, 491-94, 111 S.Ct. 888, 895-97, 112 L.Ed.2d 1005 (1991) (Court read provision precluding judicial review narrowly
to apply only to direct review of individual determinations regarding a type of
immigration status, "rather [than reading the finality provision to apply]
to general collateral challenges to
unconstitutional practices and policies used by the agency in processing
applications," because the broader reading would make no sense in light of
other provisions in the Immigration and Naturalization Act); Traynor
v. Turnage,
485 U.S. 535, 542-45, 108 S.Ct. 1372, 1378-80, 99 L.Ed.2d 618 (1988) (Court held that bar to judicial review of decisions of
Veterans Administrator on questions of law or fact would not bar constitutional
or statutory challenge to VA decision because such challenges would not disrupt
statutory scheme).
FN16. See Traynor,
485 U.S. at 540, 108 S.Ct. at 1377-78 (Court
permitted cases against the VA to go forward based on Rehabilitation Act of
1973 because such actions would not burden the courts or frustrate uniformity
of technical and complex determinations and applications of VA policy connected
with veterans' benefits decisions); Dart,
848 F.2d at 222-3 (Court permitted review of ALJ
decision where the agency went beyond its delegated authority); Bartlett
v. Bowen,
816 F.2d 695, 699 (D.C.Cir.1987) (Court held constitutional
challenge to agency action not foreclosed by provision barring judicial
review).
II. THE DEFENDANTS ARE ENTITLED TO SUMMARY
JUDGMENT AS A MATTER OF LAW ON THE PLAINTIFF'S FIRST AND FIFTH AMENDMENT
CLAIMS.
[5] Although the Court
holds that the AECA precludes judicial review of the Department *9 of
State's determination that the Karn diskette is a designated defense article
subject to the ITAR, the plaintiff also asserts that the regulation of the
diskette violates the plaintiff's First and Fifth Amendment rights. Both parties agree that such constitutional
challenges are not barred by § 2778(h). See Webster
v. Doe,
486 U.S. 592, 602-05, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988). Accordingly, the
Court will now proceed to address the defendants' Motion for Summary Judgment
with respect to these claims.
A party is entitled to summary judgment when
there are no material facts in dispute and its position is correct as a matter
of law. Anderson
v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Celotex
v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Material facts
are those "facts that might affect the outcome of the suit under the
governing law...." Anderson,
477 U.S. at 248, 106 S.Ct. at 2510. The Court finds that there are no material
facts in dispute with respect to the plaintiff's First and Fifth Amendment
claims, and for the reasons set forth below, the defendants are entitled to
summary judgment as a matter of law.
A. The Court Shall Grant The Defendants'
Motion For Summary Judgment On The Plaintiff's First Amendment Claim Because
The Regulation Is Content-Neutral And Meets
The O'Brien Test.
1. Regulation Of The Diskette Is Subject To The O'Brien
Test Because The
Governmental Interest At Stake Is Unrelated To The Content Of Any
Protected
Speech Contained On The Diskette.
The plaintiff contends that the defendants'
regulation of the Karn diskette [FN17]
constitutes a restraint on free speech in violation of the plaintiff's First
Amendment rights. The plaintiff argues
the diskette should be considered "speech" for the purpose of First
Amendment analysis because the computer language source codes contained on the
diskette are comprehensible to human beings when viewed on a personal computer,
because the diskette contains "comments" interspersed throughout the
source code which are useful only to a human and are ignored by the computer,
and because the source code and comments taken together teach humans how to
speak in code. [FN18]
FN17. The defendants
have regulated only the plaintiff's diskette, not the book. The Court will not address whether the
defendants can regulate the book pursuant to the AECA and the ITAR because that
issue is not properly before this Court.
FN18. The
plaintiff's reliance on Minneapolis
Star & Tribune Co. v. Comm. of Revenue,
460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983),
for the proposition that the diskette is a
"tool of speech" which cannot be regulated, is entirely
misplaced. In that case, the Supreme
Court invalidated a statute that singled out publications for disparate
taxation. Id.
at 581-82, 103 S.Ct. at 1369-70. Such circumstances are simply not present in
this case.
As a threshold matter, for the purpose of
addressing the dispositive issue whether the regulation is justified and
permissible, the Court will assume that the protection of the First Amendment
extends to the source code [FN19] and the
comments on the plaintiff's diskette. [FN20] The Supreme Court has described *10
the First Amendment right to free speech as that which "generally prevents
the government from proscribing speech because of disapproval of the ideas
expressed." R.A.V.
v. City of St. Paul,
505 U.S. 377, 381-82, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (citations omitted). Assuming the source codes and
comments are within the arena of protected speech, the Court must then
determine the basis for the regulation at issue in this case.
FN19. The Court
makes no ruling as to whether source codes, without the comments, fall within
the protection of the First Amendment.
Source codes are merely a means of commanding a computer to perform a
function.
FN20. The plaintiff cites Supreme Court authority holding that
the teaching of a foreign language is "speech," in an apparent
attempt to add some additional First Amendment protection to the diskette other
than that provided for the communication of scientific or mathematical
information. Whether the source code and comments convey information on speaking
in a foreign language (and it is not clear that cryptography qualifies) or
convey information on the science of cryptographic algorithms, the analysis is
the same. The plaintiff also relies
upon an unpublished Ninth Circuit opinion declaring Arizona's
"English-only" statute unconstitutional. See Yniguez
v. Arizona,
69 F.3d 920 (9th Cir.1995). Yniguez does not apply to the case at
bar, however, because the defendants have not passed a regulation prohibiting
speaking in code.
[6][7] The rationale for a regulation determines the level of
scrutiny to be applied to said regulation;
if the regulation is content-based, the regulation will be
"presumptively invalid," whereas if the regulation is
content-neutral, then the government may justify the regulation if certain
other criteria are met. Id. at
381-402, 112
S.Ct. at 2542-54. These additional criteria--whether the
regulation is (1) within the constitutional power of the government, (2)
"furthers an important or substantial governmental interest," and (3) is narrowly tailored to
the governmental interest--have been referred to as the O'Brien test
after the Supreme Court upheld the government's prohibition against burning
draft cards based on these criteria in United
States v. O'Brien,
391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
[8] The plaintiff disputes this characterization of the law,
arguing that the nature of the matter regulated, (e.g., whether
"conduct" or "pure speech"), as opposed to the rationale
for the regulation, actually dictates the level of scrutiny to be applied. The plaintiff submits that the O'Brien
criteria are inapplicable because they apply only to the regulation of
"conduct", and that the Karn diskette is "pure speech", the
regulation of which should require strict scrutiny review. The Court disagrees, as the plaintiff's
argument places form over substance.
Pursuant to extensive First Amendment jurisprudence, the government's
rationale for the regulation controls, regardless of the form of the speech or
expression regulated. See Ward
v. Rock Against Racism,
491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989) ("Time, place, and manner" restriction on music
permitted where, among other things, regulation was content-neutral); Clark
v. Community of Creative Non-Violence,
468 U.S. 288, 298, 104 S.Ct. 3065, 3071, 82 L.Ed.2d 221 (1984) (Standard for evaluating expressive conduct, including
requirement that regulation be content-neutral, "is little, if any,
different from standard applied to time,
place, or manner restrictions"); O'Brien,
391 U.S. at 377, 88 S.Ct. at 1679 (Government
prohibition against burning of draft cards sufficiently justified if, among
other things, "the governmental interest is unrelated to the suppression
of free expression"). Accordingly,
it is unnecessary for the Court to make any finding regarding the nature of the
matter contained on the Karn diskette.
[9] The government regulation at issue here is clearly
content-neutral. The defendants'
rationale for regulating the export of the diskette is that "the
proliferation of [cryptographic hardware and software] will make it easier for
foreign intelligence targets to deny the United States Government access to
information vital to national security interests." Crowell Decl. at 3. The defendants are not regulating the export
of the diskette because of the expressive content of the comments and or source
code, but instead are regulating because of the belief that the combination of
encryption source code on machine readable media will make it easier for
foreign intelligence sources to encode their communications. The government considers the cryptographic
source code contained on machine-readable media as cryptographic software and
has chosen to regulate it accordingly.
The plaintiff does not dispute this motive for
regulating the export of the diskette, but instead questions the logic of such
a motive in light of the plaintiff's allegations that, without compiling the
source code and without further programming,
the Karn diskette does not perform a cryptographic function, and that there is
no actual danger to national security because the source codes can be obtained
abroad through the book or on the Internet.
Such issues are not material to the determination of content neutrality. In this case, the plaintiff has not
presented any evidence to suggest the bad faith of the government, or that the
government's expressed motive is a pretense. Accordingly, the Court *11
finds that the rationale expressed by the government is content-neutral and the
regulation is subject to the standards set forth by the Supreme Court in O'Brien.
2. The Regulation Of The Diskette Meets The O'Brien Test
Because It Is
Within The Power Of The Government To Control The Export Of
Defense Articles,
It Furthers The Significant Governmental Interest Of Preventing The
Proliferation Of Cryptographic Products, And It Is Narrowly
Tailored To Meet
That Interest.
[10] As stated previously, a content-neutral regulation is
justified under the O'Brien test if it is within the constitutional
power of the government, it "furthers an important or substantial
governmental interest," and "the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of
that interest." O'Brien,
391 U.S. at 377, 88 S.Ct. at 1679. The plaintiff does not dispute that
regulating the export of cryptographic software is within the constitutional
power of the government. [FN21] Nor does the
plaintiff expressly dispute the second requirement, that the government has an
important interest at stake. The defendants
have submitted evidence, which the plaintiff does not dispute, stating that the
interception of communication made by foreign intelligence targets is
"essential to the national defense, national security, and the conduct of
the foreign affairs of the United States." Crowell Decl. at 3. In the context of this factual backdrop, the
defendants have expressed the following government interest for justifying the
regulation of the plaintiff's diskette:
"the proliferation of cryptographic products will make it easier
for foreign intelligence targets to deny the United States Government access to
information vital to national security interests." Crowell Decl. at 3.
FN21. The plaintiff
cannot dispute this point in good faith, as "the federal government
undeniably possesses the power to regulate the international arms
traffic." United
States v. Edler Indus.,
579 F.2d 516, 520 (9th Cir.1978).
[11] The plaintiff argues instead that the third prong of
the O'Brien test is not satisfied
because the cryptographic algorithms contained on the Karn diskette are
"already widely available in other countries [through the Internet and
other sources] or are so 'weak' that they can be broken by the [National Security Agency]." [FN22] Plaint's Opp. 15-16. Although the plaintiff has labeled his
argument as one concerning the "narrowly tailored restriction"
requirement of the O'Brien test, the plaintiff's argument implicates the
second O'Brien requirement by questioning whether the government has a
legitimate interest at stake. Indeed,
the plaintiff contends that his argument constitutes a factual dispute with the
defendants, making the plaintiff's First Amendment claim inappropriate for
summary judgment as a matter of law.
FN22. The plaintiff
also argues that certain "hashing" algorithms, which do not encrypt
at all, pose no danger to national security.
The government agrees, and in fact, hashing "functions are
expressly exempted from ITAR regulation."
Plaint's Opp. at 32. These
algorithms are only affected by the regulation because they are included for
export on the same disk as the cryptographic source code algorithms.
The Court does not agree. The plaintiff attempts to disguise a
disagreement with the foreign policy judgment of the President as a factual
dispute. By placing cryptographic
products on the ITAR, the President has determined that the proliferation of
cryptographic products will harm the United States. This policy judgment exists despite the
availability of cryptographic software through
the Internet and the National Security Agency's alleged ability to break
certain codes. Even if this were a
factual dispute, it is not one into which this Court can or will delve. The Court will not scrutinize the
President's foreign policy decision. As
the Supreme Court stated in Chicago
& Southern Air Lines v. Waterman SS. Corp.,
333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948),
such decisions:
are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by
those directly responsible to the people whose welfare they advance or
imperil. They are decisions of a kind
for which the Judiciary has neither aptitude, facilities nor responsibility and
which has long been held to belong in the domain of political power not subject
to judicial intrusion or inquiry.
*12 333
U.S. at 111, 68 S.Ct. at 436. The plaintiff also suggests that the Court
balance any First Amendment harms created through regulation of the diskette
against the injury caused to national security if the export of the diskette
were not regulated. See Plaint's
Opp. 16. However, unlike Tinker
v. Des Moines Independent Community School District,
393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969), where the Supreme Court applied an ad hoc
balancing test, such a test in the case at bar would require the Court to
scrutinize the actual injury to national security. Again, the Court declines to do so. See United
States v. Mandel,
914 F.2d 1215, 1223 (9th Cir.1990) ( "[W]hether the export of a given commodity would
make a significant contribution to the military potential of other countries
... is a political question not subject to review to determine whether [it] had
a basis in fact"); United
States v. Martinez,
904 F.2d 601, 602 (11th Cir.1990) ("The
question whether a particular item should have been placed on the Munitions
List possesses nearly every trait that the Supreme Court has enumerated
traditionally renders a question 'political' "). Furthermore, the plaintiff cannot genuinely
dispute that, absent the restriction on the export of cryptographic products
and the plaintiff's diskette, the actual number of cryptographic products [FN23] available
to foreign intelligence sources will be greater.
FN23. The Court
makes no finding with respect to the "functionality" of the Karn
diskette as a cryptographic device. The
parties agree that the source codes on the diskette can be "executed to
encrypt communications on a computer by:
(a) writing additional instructions to the computer called 'input and
output routines' ... (b) compiling the total source code into object code by
using commercially available software;
and (c) typing a command to the computer...." Joint St. ¶
20. Given this stipulation, the
defendants still consider the disk as a cryptographic product; therefore, the
defendants have made the policy decision that the proliferation of this type of product is
harmful to the national security.
Finally, the plaintiff has not advanced any
argument that the regulation is "substantially broader than
necessary" to prevent the proliferation of cryptographic products. City
Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 808, 104 S.Ct. 2118, 2130, 80 L.Ed.2d 772 (1984). Nor has the
plaintiff articulated any present barrier to the spreading of information on
cryptography "by any other means" other than those containing
encryption source code on machine-readable media. Clark,
468 U.S. at 295, 104 S.Ct. at 3070. Therefore, the Court holds that the
regulation of the plaintiff's diskette is narrowly tailored to the goal of
limiting the proliferation of cryptographic products and that the regulation is
justified.
3. The Court Shall Deny The Plaintiff's First Amendment Claim
Regarding The
"Technical Data" Provisions Of The ITAR Because The
Plaintiff Does Not Have
Standing And The Defendants Have Limited Their Application Of Said
Provisions.
As a last-ditch argument, the plaintiff
contends that the Court should invalidate the ITAR under the First Amendment
because certain provisions of the ITAR regulating the export of "technical
data," as defined in 22
C.F.R. § 120.10, constitute "an unconstitutional system of vague
prior restraints." The plaintiff
bases his argument on internal government memoranda that express concern regarding the possible overbreadth and
vagueness of said provisions.
[12][13] The plaintiff has no standing to bring this claim
regarding the unconstitutionality of the "technical data" provisions. [FN24] The defendants have
not applied the "technical data" restrictions to the plaintiff--in
fact, the crux of the plaintiff's APA claim is that although the plaintiff
believes the diskette is exempted from the ITAR because it is in the public
domain, the defendants have arbitrarily concluded that the public domain
exemption does not apply because the diskette is not "technical
data." The Court will not accept
the plaintiff's invitation to address the constitutionality of the
"technical data" provisions of the ITAR where the plaintiff's injury
is not causally connected to said provisions.
See Lujan
v. Defenders of Wildlife,
504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (Court held that case-or-*13 controversy standing
required, among other things, that the plaintiff must have suffered an injury
causally connected to the challenged action of the defendant). While courts have departed from traditional
rules of standing with respect to certain First Amendment claims, claims of
facial overbreadth and vagueness are rarely entertained with respect to
content-neutral regulations. See Broadrick
v. Oklahoma,
413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973).
FN24. Although not
raised by either party, the Court is "obliged to examined the standing" of the plaintiff to
assert his claim. Juidice
v. Vail,
430 U.S. 327, 331, 97 S.Ct. 1211, 1215, 51 L.Ed.2d 376 (1977).
[14] Furthermore, the plaintiff's overbreadth concerns are not
genuine. In United
States v. Edler Indus.,
579 F.2d 516 (1978), the Ninth Circuit addressed
the argument that the definition of "technical data" in the ITAR is
"susceptible to an overbroad interpretation." Id.
at 520.
The court chose to read the technical data provision narrowly to avoid
finding a constitutional violation. Id.
at 521.
The Department of State has since limited its application of the
provision in practice to the interpretation expressed by the court in Edler
Indus. See Preamble to
Revisions of International
Traffic in Arms Regulations (Final Rule) 49 Fed.Reg. 47682, 47683 (Dec. 6,
1984). In
evaluating the plaintiff's overbreadth claim, the Court " 'must ...
consider any limiting construction that a ... court or enforcement agency has
proferred.' " Ward,
491 U.S. at 796, 109 S.Ct. at 2756 (quoting Hoffman
Estates v. The Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494, n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362 (1982)). Accordingly,
based on the plaintiff's lack of standing, and in light of the limitations to
the "technical data" provisions adopted by the Department of State,
the plaintiff cannot prevail on his First Amendment claim that the ITAR is
vague and overbroad.
B. REGULATING THE EXPORT OF THE PLAINTIFF'S
DISKETTE IS RATIONAL AND, ACCORDINGLY, DOES
NOT VIOLATE THE SUBSTANTIVE DUE PROCESS RIGHTS GUARANTEED THE PLAINTIFF UNDER
THE FIFTH AMENDMENT OF THE CONSTITUTION.
As stated previously, § 2778(h) of the
AECA precludes the APA claim asserted by the plaintiff, but it cannot bar a
constitutional attack. Recognizing the significant possibility that this Court
might hold the plaintiff's "arbitrary and capricious" challenge under
the APA nonjusticiable, see Part I of this Memorandum Opinion, the
plaintiff asserts the same "arbitrary and capricious" challenge under
the legal theory that the defendants' actions violated his right to substantive
due process as guaranteed by the Fifth Amendment. However, the plaintiff may not backdoor his
APA claim through the Fifth Amendment as that would render the judicial review
preclusion in § 2778(h) absolutely
meaningless. See Sylvia
Develop. Corp. v. Calvert County,
48 F.3d 810, 829 n. 7 (4th Cir.1995) ("As
the courts have consistently recognized, the inquiry into 'arbitrariness' under
the Due Process Clause is completely distinct from and far narrower than the
inquiry into 'arbitrariness' under state or federal administrative law").
[15][16] The substantive due process provided in the Fifth
Amendment, absent the assertion of a fundamental right, merely requires a
reasonable fit between governmental purpose and the means chosen to advance
that purpose. See Usery
v. Turner Elkhorn Mining Co.,
428 U.S. 1, 19, 96 S.Ct. 2882, 2894, 49 L.Ed.2d 752 (1976) ("Under the deferential standard of review applied in
substantive due process challenges to
economic legislation there is no need for mathematical precision in the fit
between justification and means").
Given this "extremely limited scope of permissible judicial inquiry,"
Association
of Accredited Cosmetology Schools v. Alexander,
979 F.2d 859, 866 (D.C.Cir.1992), the plaintiff's
due process claim lacks any merit. The
government clearly has an interest in preventing the proliferation of
cryptographic software to foreign powers, and the regulation of the export of
the cryptographic software is a rational means of achieving that goal. The Court will not substitute its policy
judgments for that of the President, see Bowen
v. Gilliard,
483 U.S. 587, 597, 107 S.Ct. 3008, 3015, 97 L.Ed.2d 485 (1987), especially in the area of national security. See Martinez,
904 F.2d at 602.
*14 Likewise, the regulation of the
plaintiff's diskette as cryptographic software is rational, even when
considered in conjunction with the defendants' decision not to subject the book
Applied Cryptography to the ITAR.
As stated by the plaintiff in his commodity jurisdiction application for
Applied Cryptography, the book contains no machine-readable media, while
the diskette is precisely that. See
Lowell Decl., Tab 4. Although Part Five
of the book could be placed on machine readable media through the use of
optical character recognition technology or through direct typing, the
plaintiff concedes that using the source code in Part Five of Applied
Cryptography to encode material takes greater
effort and time than using the Karn diskette.
Karn Decl. ¶ ¶ 10- 12. Accordingly, treating the book and diskette
differently is not in violation of the plaintiff's substantive due process
rights. Finally, to the extent that the
plaintiff's substantive due process rights require the Court to review the
defendants' interpretation of the public domain exemption to the ITAR, the
Court finds the defendants' interpretation reasonable as a matter of law.
CONCLUSION
For the reasons discussed above, the Court
shall dismiss the plaintiff's APA claim, and the defendant is entitled to
summary judgment on the plaintiff's First and Fifth Amendment claims. The Court shall issue an Order of even date
herewith consistent with the foregoing Opinion.
925 F.Supp. 1
END OF
DOCUMENT