We sent this off to the State Dept. today. law office of Lee Tien 1452 Curtis Street Berkeley, California 94702 _______________ tien@well.sf.ca.us voice: (510) 525-0817 fax: (510) 525-3015 June 28, 1993 Clyde Bryant Foreign Affairs Officer Compliance Division Bureau of Politico-Military Affairs Office of Defense Trade Controls U.S. Department of State PM/ODTC SA-6 Rm. 200 Washington, DC 20522 Dear Mr. Bryant: Mr. Dan Cook told my client, Mr. John Gilmore, that you and the Compliance Division of the Office of Defense Trade Controls are presently reviewing aspects of the International Traffic in Arms Regulations (ITAR) with respect to First Amendment questions. My client volunteered to send some law review articles in order that all relevant materials be available to you in this review. I am pleased to provide you with some materials which you may find useful in your review. They address First Amendment and other constitutional issues raised by the Arms Export Control Act, the ITAR, and the Export Administration Act. We believe that information about cryptography, including research papers, discussion of cryptographic algorithms, and implementations in source-code form, is protected speech within the meaning of the First Amendment. We also believe that the export controls of the ITAR violate the First Amendment because they infringe the rights of cryptographers to speak and publish freely. The licensing procedure amounts to prior restraint. The laws and regulations are vague and overbroad. I have enclosed the following materials: 1. Ferguson, Scientific Inquiry and the First Amendment, 64 CORNELL L.REV. 639 (1979) 2. Note, National Security Controls on the Dissemination of Privately Generated Scientific Information, 30 U.C.L.A. L. REV. 405 (1982) 3. Cheh, Government Control of Private Ideas -- Striking a Balance Between Scientific Freedom and National Security, 23 JURIMETRICS J. 1 (1982) 4. Greenstein, National Security Controls on Scientific Information, 23 JURIMETRICS J. 50 (1982) 5. Alexander, Preserving High-Tech Secrets: National Security Controls on University Research and Teaching, 15 LAW & POL'Y IN INT'L BUS. 173 (1983) 6. Wilson, National Security Control of Technological Information, 25 JURIMETRICS J. 109 (1985) 7. John Harmon, Assistant Attorney General, Office of Legal Counsel, Department of Justice, Memorandum to Dr. Frank Press, Science Advisor to the President, Re: Constitutionality Under the First Amendment of ITAR Restrictions on Public Cryptography (May 11, 1978). This memorandum was reprinted in The Government's Classification of Private Ideas: Hearings before a Subcomm. of the House Comm. on Government Operations, 96th Cong., 2d Sess., 268-84 (1980). These hearing transcripts were accompanied by a House Report. House Comm. on Gov't Operations, The Government's Classification of Private Ideas, H.R. REP. NO. 1540, 96TH CONG., 2D SESS. (1980). We strongly recommend that you read both the hearing transcripts and the summary report. We hope that these materials will assist you in formulating a constitutional export control policy for scientific research in general and for cryptography in particular. Please do not hesitate to contact me if you wish to engage in further exchanges. Sincerely, Lee Tien Attorney at Law On behalf of Mr. John Gilmore cc: Mr. Daniel Cook Mr. John Gilmore