MEMORANDUM OPINION
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 merit-less constitutional claims because he and others have not been able to persuade the Con
The case arises out of the defendants’ designation of the plaintiffs computer diskette as a “defense article” pursuant to the Arms Export Control Act (AECA), 22 U.S.C. §§ 2751-2796d, and thе 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 1 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 plaintiffs First Amendment right to freedom of speech and arbitrarily treats the diskette differently than the book in violation of the plaintiffs Fifth Amendment right to substantive due process.
The defendants move to dismiss the plaintiffs 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 plaintiffs 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 plaintiffs APA claim as nonjusticiable, and the Court shall grant the defendant’s Motion for Summary Judgment with respect to the plaintiffs First and Fifth Amendment claims.
BACKGROUND
On February 12,1994, the plaintiff submitted to the Department of State a commodity jurisdiction request 2 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.
On March 2,1994, in response to the plaintiffs 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
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 plaintiffs 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 plaintiffs appeal on June 13,1995, reaffirming the earlier determinations that the Kam diskette “contains cryptographic software [and] is designated as a defense article under Category XIII(b)(l).” 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 рlaintiff 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 Kam, 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 Kam 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 Statе, 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.
3
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”;
4
“Mili
(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 arguеs 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 8 and 120.11, 9 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), 10 120.11 and 121.8(f) 11 ).
B. Section 2778(h) Of The Arms Export Control Act Precludes Judicial Review Of The Designation Of The Earn 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
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.,
Section 2778(h) expressly bars judicial review of the President’s (or his desig-nee’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 Earn 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 fisting items as defense articles on the munitions fist 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.
The Court finds the plaintiffs 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, аll 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 fist. The defendants did precisely that. Furthermore, even if the plaintiffs 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 plaintiffs challenge.
To parse the statute as the plaintiff suggests makes little sense in fight 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 рotential 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 fist 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 fist 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.
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 Deck, 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 softwarе 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)(l). 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 (ie., subject to the commodity control list), but permitted review of the determination that an item was in fact a defense article (ie., subject tо 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
Finally, the plaintiffs challenge is not of a nature that commands a heightened
In the case at bar, the plaintiffs APA claim does not raise a facial challenge to the agency’s action in the context of the agency’s statutory authority, 13 but instead disputes whether the Earn diskette constitutes a defense article subject to the licensing restrictions of the ITAR. Permitting judicial review of the plaintiffs APA claim would in fact open the floodgates to litigation; evеry 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.
Based on the authorities cited in the plaintiffs 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 14 or a statutory scheme 15 that raised substantial doubt as to whether Congress intended to preclude judicial review. Moreover, some of the cases often involved a facial challenge 16 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 prеsented 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 plaintiffs challenge) the Court holds that Congress has barred judicial review.
II. THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW ON THE PLAINTIFF’S FIRST AND FIFTH AMENDMENT CLAIMS.
Although the Court holds that the AECA precludes judicial review of the De
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.,
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 Kara diskette 17 constitutes a restraint on free speech in violation of the plaintiffs 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 diskеtte 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. 18
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
19
and the comments on the plaintiffs diskette.
20
The Supreme Court has de
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,
The plaintiff disputes this characterization of the law, arguing that the nature of the matter regulated,
(e.g.,
whether “conduct” or “pure sрeech”), as opposed to the rationale for the regulation, actually dictates the level of scrutiny to be applied. The plaintiff submits that the
OBrien
criteria are inapplicable because they apply only to the regulation of “conduct”, and that the Earn diskette is “pure speech”, the regulation of which should require strict scrutiny review. The Court disagrees, as the plaintiffs 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,
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 arе 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 plaintiffs allegations that, without compiling the source code and without further programming, the Earn 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 ease, 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
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.
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 nо greater than is essential to the fiirtherance of that interest.”
O’Brien,
The plaintiff argues instead that the third prong of the O’Brien test is not satisfied because the cryptographic algorithms contained on the Kara 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].” 22 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 plaintiffs 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 plaintiffs First Amendment claim inappropriate for summary judgment as a matter of law.
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.,
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.
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,
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.
The plaintiff has no standing to bring this claim regarding the unconstitutionality of the “technical data” provisions.
24
The defendants have not applied the “technical data” restrictions to the plaintiff—in fact, the crux of the plaintiffs 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 plaintiffs invitation to address the constitutionality of the “technical data” provisions of the ITAR where the plaintiffs injury is not causally connected to said provisions.
See Lujan v. Defenders of Wildlife,
Furthermore, the plaintiffs over-breadth concerns are not genuine. In
United States v. Edler Indus.,
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 thе APA claim asserted by the plaintiff, but it cannot bar a constitutional attack. Recognizing the significant possibility that this Court might hold the plaintiffs “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,
The substantive due process provided in the Fifth Amendment, absent the assertion of a fundamental right, merely requirеs a reasonable fit between governmental purpose and the means chosen to advance that purpose.
See Usery v. Turner Elkhorn Mining Co.,
CONCLUSION
For the reasons discussed above, the Court shall dismiss the plaintiffs APA claim, and the defendant is entitled to summary judgment on the plaintiffs First and Fifth Amendment claims. The Court shall issue an Order of even date herewith consistent with the foregoing Opinion.
Notes
. "Cryptography” is "the art and science of keeping messages secure ... L 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 instructiоns to a computer that, when compiled into object code by using commercially available software, enables a computer to perform cryptographic functions. Joint St. ¶¶ 16.
. 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 XHI(b)(l), Note.
. Other subparts address the registration of exporters, the licensing of exporters, general policies and procedures, and violations and penalties.
. See 22 C.F.R. § 121.1, category VII(b).
. See id., category IX(a).
. See id., category X.
. See id., category XI.
. 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 subjeсt to the controls of this subchapter.
. 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....
. 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.
. 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.
. Based on
Dart v. United States,
. However, the plaintiff does raise constitutional claims which the Court addresses, infra.
.
See Lindahl v. Office of Personnel Mgt.,
.
See McNary v. Haitian Refugee Center,
.
See Traynor,
. 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.
. The plaintiff's reliance on
Minneapolis Star & Tribune Co. v. Comm. of Revenue,
. 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.
.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,
. 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.,
. 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 оnly affected by the regulation because they are included for export on the same disk as the cryptographic source code algorithms.
. The Court makes no finding with respect to the "functionality" of the Kam 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.
. Although not raised by either party, the Court is "obliged to examined the standing" of the plaintiff to assert his claim.
Juidice v. Vail,