Tab E

GINO J. SCARSELLI
Attorney at Law
Tel/Fax 216-291-8601

                               January 2, 1997

    VIA FACSIMILE AND MAIL

    Anthony Coppolino, Esq.
    Department of Justice
    Civil Division, room 1084
    901 E Street, N.W.
    Washington, D.C. 20530

    re:   Junger v. Christopher, Case No. 96 CV  1723 (N.D. Ohio)

    Dear Mr. Coppolino:

         In light of the new Commerce regulations effective Monday,
    December 30, 1996, and to narrow the issues before the Court, the
    plaintiff is seeking clarification from the government.

         As stated in the complaint and in the plaintiff's declaration,
    Prof. Junger wants to allow foreign students in his Computers and Law
    class, wants to exchange cryptographic information with foreign col-
    leagues, wants to publish articles and his course materials, and wants
    to post cryptographic information on his web site.  The information
    includes the source codes and machine code representations of his one-
    time pad and other encryption programs, as well as the underlying
    algorithms and information on how to use, and where to obtain, encryp-
    tion programs.  As we read the new regulations, some of what Prof.
    Junger seeks may now be permitted.

         Section 744.9, "Restrictions on technical assistance by U.S.
    persons with respect to encryption items," of the new regulations
    provides an exemption for academic teaching and discussions of cryp-
    tography.  Thus, it appears that in class disclosure of encryption
    software and technology to foreign students is permitted.

         Even if there are no restrictions placed on classroom disclosure
    under the new regulations, we are concerned that there are other
    restrictions that limit the First Amendment rights of Prof. Junger and
    others.

         Notwithstanding § 744.9, the sections exempting publicly avail-
    able or educational technology and software from the EAR do not apply
    to encryption software controlled under ECCN 5D002.  See 22 C.F.R. §§
    734.3(b)(3), 734.7 and 734.9. However, in the note following § 734.3,
    printed material that contains encryption source code is not subject
    to the EAR:

664 Allison Drive Richmond Heights Ohio 11143-2904 USA email: gscarsel@mail.multiverse.com

                                      [2]

              Note to paragraphs (b)(2) and (b)(3) of this
              section:  A printed book or other printed materi-
              al setting forth encryption source code is not
              itself subject to the EAR (see Sec. 734.3(D)(2)).
              However, notwithstanding Sec. 734.3(b)(2),
              encryption source code in electronic form or
              media (e.g., computer diskette or CD ROM) remains
              subject to the EAR (see 734.3(b)(3)).

         Apparently, encryption software is not subject to the EAR if it's
    in printed form, but is subject to the EAR in electronic form. Thus,
    as we read the regulations, Prof. Junger is prohibited from posting
    encryption software on his World Wide Web site without a license
    (subject to the conditions in § 734.2(b)(9)(ii)) ever. if what he posts
    is an article that contains encryption source code or representations
    of machine code.

         Furthermore, it is unclear whether material that contains encryp-
    tion code if subject to the EAR is treated strictly as encryption
    software under ECCN 5D002 or may also be treated as technology under
    ECCN 5E002.

         In light of the above, we seek the following clarifications from
    your clients:

         1.    Is Prof. Junger permitted to disclose in the classroom
               encryption software and encryption technology to foreign
               students?  Are there any restrictions or, what he may dis-
               close in class?

         2.    Are foreign students who take Prof. Junger's class permit-
               ted to return to their home countries with class materials,
               which include encryption software or encryption technology?

         3.    Is Prof. Junger permitted to disclose encryption software
               or technology to foreign colleagues outside the United
               States or only within the United States?

         4.    Do the answers to (2) and (3) depend on whether the materi-
               al is disclosed in printed form or electronic form (e.g.,
               computer diskette, digital form that can be transferred via
               the internet) and whether the material is controlled for
               export as encryption software under ECCN 5D002 or encryp-
               tion technology under ECCN 5E002? Are encryption source
               code and object code controlled only as encryption software
               under ECCN 5D002?

         5.    Are articles and books, including law review articles, that
               contain encryption software subject to the EAR if electroni-
               cally published (e.g., through LEXIS, WESTLAW, file trans-
               fer protocols, World Wide Web sites)?

         6.    Are there any restrictions on posting cryptographic informa-
               tion, other than encryption source code, on a Web site?
               For example, are there any restrictions on displaying

                                          [3]

               hyperlinks to sites where encryption software can be down-
               loaded?

         Since we have a limited time to file findings of facts and
    conclusions of law,  we request responses to our questions before
    January 9, 1997.  It is our intent to file an amended complaint short-
    ly thereafter.

    Sincerely,

    [Signature]

    Gino J. Scarselli
    Attorney for the plaintiff

    cc/  Peter Junger
         Raymond Vasvari, Esq.
         Kevin O'Neill, Esq.