5 September 1997
Source: Hardcopy and html file from Peter Junger

Documents of the suit: http://jya.com/pdj.htm

# Junger v. Daley: Supplemental and Amended Complaint

97 SEP -2 PM 4:28
[Illegible]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

GINO J. SCARSELLI (0062327)
664 Allison Dr.
Richmond Hts., OH 44143-2904
(216) 291-8601

RAYMOND VASVARI (0055538)
1201 Superior Building
815 Superior Ave. East
Cleveland, OH 44114-2702
(216) 622-1780

KEVIN FRANCIS O'NEILL (0010481)
Assistant Professor of Law
Cleveland-Marshall College of Law
1801 Euclid Ave. Cleveland, OH 44115
(216) 687-2286

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

PETER D. JUNGER Plaintiff v. WILLIAM DALEY, DEPARTMENT OF COMMERCE; KENNETH A. MINIHAN,
NATIONAL SECURITY AGENCY
Defendants
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> Case No. 96 CV 1723
> JUDGE NUGENT
> SUPPLEMENTAL AND
> AMENDED COMPLAINT

PRELIMINARY STATEMENT

1. This action is brought by the plaintiff to challenge on constitutional grounds the export restrictions on the publication or other communication of cryptographic or encryption software and technology originally contained in the International Traffic in Arms Regulations (the "ITAR''), 22 C.F.R. §§ 120 et seq., promulgated by the Department of State and later transferred to the Export Administration Regulations (the "EAR''), 15 C.F.R. Part 730 et seq., promulgated by the Department of Commerce.

2. The controversy between the plaintiff and the defendants continues under the Commerce Department regulations. Like the ITAR, the EAR restricts the "export'' of encryption software and technology. According to the defendants, the export regulations are necessary to protect national security even though the defendants recognize that the same encryption software that cannot be exported without a license is widely available outside the United States. The regulations, which purport to protect national security, actually restrict what can be published and communicated on the Internet.

3. Since the export regulations interfere not only with the plaintiff's constitutional rights, but also with the constitutional rights of others, the plaintiff challenges the regulations on facial as well as applied grounds.

JURISDICTION, VENUE AND PARTIES

4. The claims herein arise under the Constitution of the United States and federal statutory law. Declaratory relief is sought under 28 U.S.C. §§ 2201-02. The jurisdiction of this Court continues pursuant to 28 U.S.C. § 1331.

5. The plaintiff continues to reside in the Northern District of Ohio.

6. Noting the change in regulatory jurisdiction, the plaintiff substitutes William Daley and the Department of Commerce for Madeleine Albright, the Department of State, William J. Lowell and the Office of Defense Trade Controls as defendants.

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7. William Daley is the United States Secretary of Commerce.

8. Kenneth A. Minihan is Director of the National Security Agency ("NSA'').

9. The individual defendants are members of the executive branch of the government of the United States. The individual defendants are sued as officers or employees of the United States acting in their official capacities under color of law.

10. The defendants and their respective agencies (collectively "the government'') are responsible for the interpretation, review and administration of the regulations at issue.

STATUTORY AND REGULATORY BACKGROUND

11. The EAR was originally promulgated under the Export Administration Act of 1979 (EAA), 50 U.S.C. App. § 2401 et seq. The EAA, however, was not intended to be permanent legislation and lapsed on August 20, 1994. Since then, the President has continued and amended the EAR by executive order under the authority granted to him by the International Emergency Economic Powers Act ("IEEPA''), 50 U.S.C. § 1701 et seq. (See Attachments, Tab A, Executive Order No. 13206, dated November 15, 1996.)

12. By executive order, the President transferred the regulation of all non-military1 encryption commodities, software and technology (collectively, encryption items ("EIs'')) to the Commerce Department under the EAR effective December 30, 1996. (See generally Tab A, Excerpts from 61 Fed. Reg., December 30, 1996.)

13. The President has explicitly left open the option of transferring encryption controls back to the ITAR "upon enactment of any legislation reauthorizing the administration of export controls.'' (Tab A, Memorandum from the White House, November 15, 1996, ¶ 8.)

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1 Encryption items that are "specifically designed, developed, configured, adapted or modified for military applications (including command, control and intelligence applications)" remain on the ITAR under the State Department jurisdiction. See 61 Fed. Reg. 68633 (December 30, 1996). Unless otherwise noted in this complaint, reference to encryption items, encryption software (including source code and object code), and encryption technology excludes items presently controlled under the ITAR.

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14. Encryption items are listed on the Commerce Control List (CCL) and are controlled for EI reasons (i.e., foreign policy and national security reasons specific to encryption) according to "Export Control Classification Numbers'' (ECCNs) 5A002, 5D002 and 5E002. See 15 C.F.R. § 738 (structure and organization of the CCL). Encryption software and technology are controlled under 5D002 and 5E002, respectively. 15 C.F.R. Part 774.

15. Although the EAA defines "technology'' as "information and know-how . . . that can be used to design, produce, manufacture, utilize, or reconstruct goods, including computer software and technical data, but not the goods themselves,'' 50 U.S.C. App. § 2415(4) (emphasis added), the executive order provided that encryption software "shall not be treated as `technology'. . . " (Tab A, Executive Order No. 13206 at 1(c).) Instead, encryption software "is treated under the EAR in the same manner as a commodity included in ECCN 5A002. [However,] License Exceptions for commodities are not applicable.'' 15 C.R.F. Part 774, Note following 5D002.

16. "Encryption software'' under the EAR is defined as "[c]omputer programs that provide capability of encryption functions or confidentiality of information or information systems. Such software includes source code, object code, applications software, or system software.'' 15 C.F.R. Part 772 (definitions).

17. All encryption software controlled under 5D002, except for encryption source code published in a book or other printed material, is subject to licensing under the EAR. See 15 C.F.R. § 734.3, Notes to Paragraphs (b)(2) and (b)(3). Encryption source code in printed form is not subject to the EAR and is thus outside the scope of the regulations.

18. The EAR requires a license to export encryption items, including software, to all destinations except Canada. See 15 C.F.R. § 742.15(b). The only exceptions made are for the export of certain mass market and key-recovery software. See id.

19. The export of encryption software under the EAR includes "an actual shipment or transmission out of the United States [and a] transfer of such software in the United States to

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an embassy or affiliate of a foreign country.'' 15 C.F.R. § 734.2(b)(9)(i)(A) and (B). The export of encryption software also includes

> (ii) . . . downloading or causing the downloading, of such software to locations (including electronic bulletin boards and Internet file transfer protocol and World Wide Web sites) outside the U.S., and making such software available for transfer outside the United States, over radio, electromagnetic, photo optical, or photoelectric communications facilities accessible to persons outside the United States, including transfers from electronic bulletin boards and Internet file transfer protocol and World Wide Web sites, or any cryptographic software subject to controls under this regulation unless the person making software available takes precautions as adequate to prevent unauthorized transfer of such code outside the United States . . .

15 C.F.R. § 734.2(b)(9)(ii).

20. Thus, the definition of export in § 734.2(b)(9)(ii) permits the licensing of Internet publication.

21. Under the EAR, licenses are also required for providing "technical assistance'' (technology) to a foreign person "with the intent to aid a foreign person in the development or manufacture outside the United States of encryption commodities and software that, if of United States origin, would be controlled for 'EI' reasons under 5A002 or 5D002.'' 15 C.F.R. § 744.9.

22. Before the December 30, 1996, amendments to the EAR became effective, software and technology that were publicly available or contained "de minimis'' domestic content were not subject to the EAR and thus could be exported without a license. See 61 Fed. Reg. 12747-48, 12741, 12749-50 (March 25, 1996). The public availability and de minimis sections, however, no longer apply to encryption software controlled under 5D002. See 15 C.F.R. §§ 732.2 (b) & (d), 734.3(b), 734.4, 734.7-9.

23. In general, software and technology that are available abroad may be exempt from the EAR licensing requirements following a determination by the Under Secretary of Commerce for Export Administration. See 61 Fed. Reg. 12915-20. This foreign availability exception no longer applies to encryption items controlled for EI reasons. 15 C.F.R. § 768.1(b). Thus,

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the export of encryption software or technology that is widely available outside the United States can still be licensed.

24. The EAR is administered by the Department of Commerce's Bureau of Export Administration (BXA) in consultation with other agencies, including the Department of Justice and the NSA.

25. Licensing decisions are determined on a "case-by-case'' basis. As stated in the Commerce Department's letter to plaintiff's counsel dated January 29, 1997,

> [i]n order to export encryption items subject to EI controls, including software, a license application must be submitted to the Commerce Department, which will grant or deny the application based on a case-by-case determination of "whether the export * * * is consistent with U.S, national security and foreign policy interests . . .''

(Tab B, letter from James A. Lewis, Director of the Department's Office of Strategic Trade and Foreign Policy Controls, dated January 29, 1997).

26. Violations of the EAR are punishable by severe civil and criminal penalties. See 15 C.F.R. § 764.3.

FACTS

27. The plaintiff taught the course "Computers and the Law'' fall semester 1996 and is teaching it this semester.

28. In the course, the plaintiff has used a short "one-time pad'' (OTP) encryption program, which he initially wrote in May 1993, to demonstrate how computers work and how computer software is, or should be, covered by intellectual property law. The plaintiff believed that his OTP program was subject to control under 5D002 because he has used it to encrypt and decrypt messages.

29. The plaintiff has set up a web site located at http://samsara.law.cwru.edu. The Web site includes information about the courses that the plaintiff teaches, including the computer and law course. The plaintiff uses the web site for teaching, but has also set up the site for

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anyone who may be interested in his courses and other topics of interest to the plaintiff.

30. After the transfer of encryption control to Commerce, plaintiff's counsel sent a letter asking the government to clarify a number of issues that were raised in the original complaint and possibly affected by the transfer. (Tab B, letter from plaintiff's counsel dated January 2, 1997). In the letter, plaintiff's counsel asked whether the new regulations imposed any restrictions on the plaintiff's teaching, research or publication, including any restrictions on posting encryption software or technology on the plaintiff's web site.

31. On January 29, 1997, Commerce responded stating that it would not be able to answer the questions raised in the January 2 letter without "specific information concerning any export activities that Prof. Junger seeks to engage in . . .'' (Tab B, letter from James A. Lewis dated January 29, 1997, at 2). Nonetheless, Commerce provided the following general conclusions:

> [T]he provisions of the EAR distinguish for export control purposes between encryption software (including source code and "machine'' or object code) and encryption technology. (Id. at 3)

> [T]he distribution of encryption software subject to EI controls to students in a class in the United States, including foreign students, is not an export under the EAR. However, such software would be subject to the provisions of the EAR and could not be exported from the United States by any person, including any foreign student who receives such software in the United States, without a license from the Bureau of Export Administration. (Id.)

> [T]here are no restrictions under the EAR to the disclosure of educational information [i.e., technology] distributed to students in a catalog course in the United States. (Id.)

> [However, the] electronic transmission of encryption software (including source code and "machine'' or object code) subject to EI controls by means of the Internet is an export under the EAR, unless the person making the software available takes precautions adequate to prevent unauthorized transfers outside the United States. (Id. at 4)

32. In the same letter, Commerce reiterated its position that specific items would only be classified if the items were submitted "for a Commodity Classification or Advisory opinion in accordance with the requirements of Section 748.3 of the EAR.'' (Id. at 5)

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Plaintiff's Submissions

33. In accordance with the requirements of § 748.3, plaintiff's counsel submitted three applications on June 12, 1997 seeking commodity classifications for a total of 13 items. (See Tab C, Application Nos. Z082060, Z082061 and Z082062.)

34. In Application No. Z082060, counsel requested commodity classifications for five computer programs: PGP, Fiddle, Twiddle, a version of the RSA algorithm in the Perl programming language and a version of the RC4 algorithm in the C programming language. Twiddle is the name of the plaintiff's OTP program in the 8086 Assembly language. Both Twiddle and Fiddle were written by the plaintiff. The other programs were downloaded from the Internet.

35. In Application No. Z082061, counsel requested commodity classifications for three items: (1) instructions that the plaintiff gave his students last fall semester for creating an executable version of Twiddle, (2) the first chapter of the plaintiff's course book and (3) a web page in the html programming language containing links to encryption programs available at foreign sites.

36. In Application No. Z082062, counsel requested commodity classifications for programs that implemented various algorithms and could be used to maintain the secrecy or confidentiality of information.

37. On July 3, 1997, Commerce responded to the classification requests made in the three applications. (See Tab D.) Regarding Application No. Z082060, all of the programs, except Twiddle, were classified as encryption software under 5D002. Twiddle, the plaintiff's OTP program in Assembly language, was classified as EAR 99, which is the designation given to items controlled under the EAR but not listed on the Commodity Control List (CCL).

38. Regarding Application No. Z082061, the instructions and the plaintiff's first chapter were classified as EAR 99. The html page was not given a classification number. Instead, Commerce interpreted the submission as a request for an advisory opinion. According to

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Commerce, the plaintiff's activity of posting the html on his web site would not be an export subject to the EAR.

39. Regarding Application No. Z082062, Commerce stated that it was unable to classify the requests without "a complete technical description of the particular software to be classified. " (Tab D, cover letter from James A. Lewis dated July 3, 1997.)

40. In letters dated July 18 and July 24, 1997, plaintiff's counsel asked Commerce to clarify some of its commodity classification decisions. Specifically, Commerce was asked to clarify its classification of chapter one of the plaintiff's course book and explain its failure to classify the html page and the requests submitted in the third application. (See Tab E.).

41. On August 7, 1997, Commerce responded by letter from James A. Lewis. (Tab F, letter from James A. Lewis.) In response to the questions regarding chapter one of the plaintiff's course book, the letter stated that

> it is the requestor's responsibility to identify and describe with specificity the items and/or activities for which he seeks a determination . . . Item No. 2 [i.e., the chapter] contains distinct items for which commodity classifications under the EAR may vary. Specifically, the EAR treats encryption software differently from other software, and from "technology'' as defined in the EAR. For this reason, BXA examines and classifies specific items of software and technology separately, not as a single item consolidated by the requestor.

(Id. at 1.)

42. The letter went on to state that all of the programs in the chapter were classified as EAR 99. The non-software part of the chapter, on the other hand, "is not subject to the EAR if it does not meet the definition of `technology' under the EAR (e.g., discussion of export policy and the Junger lawsuit) or if it is 'publicly available' within the meaning of Section 734.3 of the EAR . . .'' (Id.) In response to the question of how the chapter would be classified if it contained a program controlled under 5D002 (e.g., the RSA algorithm in Perl, which was previously classified as 5D002 software), the letter again emphasized that software is treated separately from the surrounding text and would be classified accordingly. In other words, if software is controlled under 5D002, it is subject to export control. (See id.

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at 2.)

43. Thus, the plaintiff cannot publish chapter one of his course book on his web site without obtaining a license if the chapter contains the RSA algorithm in Perl.

44. In response to the questions regarding the status of html links, Commerce again failed to classify the links. Nonetheless, the letter stated that the plaintiff's activity would not be considered an export, but the letter also noted that "the use of html links by a person might, in some applications, involve an export, See Section 734.2(b) (export of encryption software includes downloading such software from Internet sites in the United States to locations outside the United States).'' (See Id. at 2.)

45. It is unclear, however, how the posting of html links could not constitute an export given that "the use'' of the links may be considered an export under § 734.2(b).

46. In response to the questions regarding the classification of programs that implement certain encryption algorithms, the letter reiterated Commerce's position that it cannot render a classification for all encryption programs that implement certain encryption algorithms even if the programs can be used to maintain secrecy or confidentiality because "licensing controls on encryption software that does maintain the secrecy of information may vary depending on how an algorithm is implemented in the software.'' (Id. at 3.)

47. Thus, the plaintiff is not justified in inferring, for example, that all one-time pads using XOR are classified as EAR 99, although the plaintiff's Twiddle program and Paul Leyland's one-time pad in C were classified as EAR 99, or that all programs incorporating RSA or RC4 are classified as 5D002, although the RSA and RC4 programs that were submitted were classified as 5D002 software.

48. Thus, the plaintiff cannot rely on the language of the regulations or the BXA's evaluation of similar material to determine if a program or other information is controlled as encryption software or technology under the EAR and is forced to submit specific material to Commerce for a determination.

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49. After receiving the last letter from Commerce, the plaintiff published Twiddle and a machine code representation in his article "Understanding Computing and the Law'' on his web site.

Communication and Publication on the Internet

50. The Internet is a vast, international network of interconnected computers. At least, 40 million people use the Internet to publish, to communicate with others and to access all kinds of information, and it is expected that 200 million people will have access to the Internet by 1999.

51. Professors and teachers of a wide range of subjects use the Internet, and in particular the Web, to communicate with their colleagues, instruct their students, publish articles and make information about their disciplines as widely accessible as possible.

52. The plaintiff uses his web site not only to "hand-out'' course material, post class announcements and direct students to outside information, but also to share his work and the work of others with anyone who might be interested. His web site covers information ranging from evolution to Buddhism to free expression, censorship and cryptography.

53. For computer scientists, professional programmers, hackers and anyone, like the plaintiff, who is conversant in programming languages,the exchange of information over the Internet includes the exchange of computer programs.

54. The plaintiff wants to publish his course book, articles and other material on computers and the law that contain encryption software, including publishing the works on his web site or allowing them to be download via ftp. In its final form, the plaintiff wants to have his course book published on CD-ROM.

55. The plaintiff wants to publish encryption software controlled for EI reasons, including the programs submitted by the plaintiff and classified under 5D002 on his web site or allow the code to be downloaded via ftp.

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56. The plaintiff wants to send encryption software and technology controlled for EI reasons to foreign persons and persons outside the United States by email or any other means.

57. It is not practically possible for the plaintiff to restrict foreign access to encryption software on his web site or through ftp transfers. Even if it were practically possible, he does not want to do so.

58. The plaintiff would have to submit software and technology he suspects might be controlled for EI reasons to the government for review and/or would have to obtain a license before engaging in the activities described above. But for the prepublication review and licensing requirements, the plaintiff would have engaged in activities described above.

59. None of the encryption software or encryption information that the plaintiff wants to disclose is classified for security reasons by the United States government, and all of the encryption software that he wants to disclose is "publicly available,'' as defined in 15 C.F.R. § 734.3(b)(3).

CLAIMS FOR RELIEF

Count I Prior Restraint

60. The plaintiff realleges and incorporates paragraphs 1 to 59 as if fully rewritten.

61. Encryption software controlled under 5D002 and encryption technology under 5E002 subject to the EAR cannot be exported or provided to foreign persons within the meaning of "providing assistance'' as defined in § 744.9 without first applying for and obtaining a license from the BXA.

62. The EAR's restrictions on the export of encryption software and technology have chilled, and continue to chill, speech and have caused the plaintiff and others to restrict their research and censor their publications and communications on the Internet and with foreign

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persons and persons outside the United States.

63. In order to apply for a license, a person must submit what he suspects is controlled for EI reasons for prepublication review.

64. The EAR provides classification and advisory opinions from the BXA. 15 C.F.R. Part 750. To the extent that a person is forced to seek a classification or advisory opinion and submit material for prepublication review, the EAR functions as a prior restraint.

65. Any requirement that material must be submitted for prepublication review absent the government going to court and demonstrating direct and immediate harm to United States national security or foreign affairs interests is presumptively unconstitutional.

66. There are no constitutionally adequate procedural safeguards to protect against abuse of discretion on the part of the officials responsible for classification and licensing decisions.

67. The provisions of the EAR referred to herein are both facially and as-applied prior restraints on publication and free expression in violation of the First Amendment to the United States Constitution.

Count II Overbreadth / Vagueness

68. The plaintiff realleges and incorporates paragraphs 1 to 67 as if fully rewritten.

69. The provisions of the EAR referred to in the paragraphs above control a substantial amount of protected speech. Encryption software controlled for EI reasons that is (a) publicly available on the Internet, (b) a result of fundamental research or (c) disclosed for academic instruction is subject to the EAR and cannot be published without a license. See 15 C.F.R. Part 772, Note to ECCN 5D002 ("Encryption software controlled for EI reasons under this entry remain subject to the EAR even when made publicly available.'')

70. The procedures for exempting items on the basis of their foreign availability do not apply to encryption software and encryption technology controlled under 5D002 and 5E002, respectively. 15 C.F.R. § 768. Thus, EI software and technology is subject to export control

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even if widely available overseas.

71. Plaintiff is informed and believes that software that contains no encryption capability whatsoever is subject to EI control if the software contains application programming interfaces (APIs) or "hooks'' where encryption can be added.

72. The definition of export for encryption software prohibits sending such software outside the United States or allowing such software to be downloaded outside the United States by foreign or U.S. persons who do not pose a threat to national security.

73. The regulations referred to herein are not narrowly tailored given the government's purported interest in protecting national security.

74. Moreover, the EAR controls on encryption do not give persons fair notice of what is subject to the EAR for EI reasons and, therefore, whether a license is required. A person of ordinary intelligence, for instance, cannot be sure whether software that can be used to maintain the secrecy or confidentiality of information is classified as encryption software under 5D002 or EAR 99, whether encryption technology is "subject to the EAR,'' and whether his proposed activity constitutes "providing technical assistance'' under § 744.9.

75. Thus, the encryption provisions of the EAR also lend themselves to arbitrary interpretation and enforcement and chill speech that may not be subject to export control. As such, the regulations referred to herein are impermissibly overbroad and vague in violation of the First and Fifth Amendments.

Count III Content Discrimination

76. The plaintiff realleges and incorporates paragraphs 1 to 75 as if fully rewritten.

77. The EAR (i) treats encryption software and encryption technology less favorably than other software and technology subject to the EAR, (ii) treats encryption source code in electronic form less favorably than encryption source code in printed form, (iii) treats certain mass market encryption software and key-recovery encryption software more favorably than

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other encryption software and (iv) treats certain mass market software in object code more favorably than in source code. All of these discriminatory treatments are arbitrary and capricious content-based restrictions on publication and free expression in violation of the First and Fifth Amendments.

Count IV Academic Freedom/Freedom of Association

78. The plaintiff realleges and incorporates herein paragraphs 1 to 78 as if fully rewritten.

79. The provisions of the EAR referred to herein restrict the plaintiff's rights and the rights of others to use the Internet to teach, research, receive and publish encryption software and technology controlled for EI reasons and, therefore, violate First Amendment rights of academic freedom.

80. The provisions of the EAR referred herein restrict the plaintiff's rights and the rights of others to exchange and disclose encryption software and technology controlled for EI reasons with persons who do not pose a threat to national security and, therefore, violate First Amendment rights of freedom of association.

Count V IEEPA

81. The plaintiff realleges and incorporates paragraphs 1 to 80 as if fully rewritten.

82. To the extent that IEEPA authorizes the President to extend export control under the EAA, the definition of export in the EAA, 50 U.S.C. (Appendix) § 2415(5), does not permit the defendants to regulate the dissemination of software and technology over the Internet.

83. The IEEPA does not authorize the regulation of information or informational materials, except for those "otherwise controlled for export'' under 50 U.S.C. App. §§ 2404 and 2405 to the extent such controls promote nonproliferation or anti-terrorism policies. 50 U.S.C. § 1702(b)(3).

84. The IEEPA does not authorize the regulation of "any postal, telegraphic, or other

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personal communication which does not involve a transfer of anything of value.'' 50 U.S.C. § 1702(3)(b)(2).

85. Thus, the defendants regulation of noncommercial, nonmilitary encryption and the regulation of any encryption over the Internet is either ultra vires or violates the constitutional doctrine of separation of powers.

PRAYER FOR RELIEF

WHEREFORE, the plaintiff requests that judgment be entered against the defendants. as follows:

(1) A declaration that the above referenced provisions of the EAR are facially unconstitutional in violation of the First and Fifth Amendments.

(2) A declaration that the above referenced provisions of the EAR are unconstitutional in violation of the First and Fifth Amendments as applied to the plaintiff's desired conduct.

(3) A preliminary and permanent injunction enjoining the defendants and their agents, employees, attorneys, successors in office, assistants and all persons and agencies acting in concert and cooperation with them, from interpreting, applying and enforcing the encryption software and technology provisions of EAR against any person who desires to disclose or "export,'' as that term is defined in the EAR, encryption software and technology.

(4) A preliminary and permanent injunction enjoining the defendants and their agents, employees, attorneys, successors in office, assistants and all persons and agencies acting in concert and cooperation with them, from interpreting, applying and enforcing the encryption software and technology provisions of EAR against the plaintiff and anyone who receives encryption software or technology from the plaintiff.

(5) An award of attorney fees pursuant to the court's discretion or the Equal Access to Justice Act, costs and such other relief as the Court deems proper.

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Respectfully submitted,

[Signature]

GINO J. SCARSELLI (0062327)
Attorney for the Plaintiff

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was faxed and mailed on September 2, 1997, to Anthony J. Coppolino, Department of justice, Civil Division room 1084, 901 E Stgreet, N.W., Washington, d.C. 20530.

Respectfully submitted,

[Signature]

Gino J. Scarselli (0062327)
664 Allison Drive
Richmond Hts., OH 44143
Tel. 216-291-8601
Fax 216-291-8601

97 SEP -2 PM 4:28
[Illegible]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

GINO J. SCARSELLI (0062327)
664 Allison Dr.
Richmond Hts., OH 44143-2904
(216) 291-8601

RAYMOND VASVARI (0055538)
1201 Superior Building
815 Superior Ave. East
Cleveland, OH 44114-2702
(216) 622-1780

KEVIN FRANCIS O'NEILL (0010481)
Assistant Professor of Law
Cleveland-Marshall College of Law
1801 Euclid Ave. Cleveland, OH 44115
(216) 687-2286

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

PETER D. JUNGER Plaintiff v. WILLIAM DALEY, et al Defendants
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> Case No. 96 CV 1723
> JUDGE NUGENT
> MOTION FOR LEAVE TO
> FILE AMENDED AND
> SUPPLEMENTAL COMPLAINT INSTANTER

On August 7, 1996, Plaintiff filed a complaint together with a motion for preliminary injunction challenging the constitutionality of provisions of the International Traffic in Ars Regulations (ITAR), 22 C.F.R. §§ 120 et seq., regulating cryptographic software and technical data. On December 30, 1996, regulatory jurisdiction over nonmilitary encryption was transferred to the Export Administration Regulations (EAR), 15 C.F.R. Part 730 et seq.

As noted in the Court's order issued on July 7, 1997. the parties agreed that Plaintiff

would file an amended complaint referencing the new regulations. Since the new complaint raises facts and issues that arose since the original complaint was filed, the new complaint may have to be treated as a supplemental pleading under Rule 15(d). Plaintiff therefore moves the Court to file an Amended and Supplemental Complaint in accordance with the parties' agreement.

Respectfully submitted,

[Signature]

GINO J. SCARSELLI (0062327)
Attorney for the Plaintiff

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was mailed and faxed on September 2, 1997, to Anthony J. Coppolino. Department of Justice, Civil Division Room 1084, 901 E Street, N.W., Washington, D.C. 20530.

Respectfully submitted,

[Signature]

Gino J. Scarselli (0062327)
664 Allison Drive
Richmond Hts., OH 44143
Tel. 216-291-8601
Fax 216-291-8601

Attorney for the Plaintiff

ATTACHMENTS TO SUPPLEMENTAL AND AMENDED COMPLAINT

JUNGER V. DALEY, et al.

CASE NO. 96 CV 1723

CONTENTS

Tab A | President's Executive Order and Memorandum from the White House dated November 15, 1996; Excerpts from 61 Federal Register. December 30, 1996.
Tab B | Letter from Plaintiff's counsel dated January 2, 1997; letter from Commerce dated January 29, 1997.
Tab C | Applications for Commodity Classification Requests dated June 12, 1997 (Applications Nos. Z082060, Z082061 and Z082062).
Tab D | Letter from Commerce dated July 4, 1997, and results of Commodity Classification Requests.
Tab E | Letters from Plaintiff's counsel dated July 18, 1997, and July 24, 1997.
Tab F | Letter from Commerce dated August 7, 1997.

[End Supplemental and Amended Complaint]

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