UNITE D STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN
   DIVISION PETER D. JUNGER, ) CASE NO. ) Plaintiff ) JUDGE ) v. ) )
   PLAINTIFF'S MOTION FOR WARREN CHRISTOPHER, et al. ) PRELIMINARY
   INJUNCTION ) ) Defendants. ) Pursuant to Rule 65(a) of the Federal
   Rules of Civil Procedure, Plaintiff Peter D. Junger respectfully
   requests that this Court grant a preliminary injunction as stated in
   the draft order for preliminary injunction attached to this motion.
   The plaintiff's declaration and a brief in support of the instant
   motion are also attached. Respectfully submitted, GINO J. SCARSELLI
   (0062327) KEVIN FRANCIS O'NEILL (0010481) 664 Allison Dr. Professor of
   Law Richmond Hts., OH 44143-2904 Cleveland-Marshall College of Law
   (216) 291-8601 1801 Euclid Ave. Cleveland, OH 44115 RAYMOND VASVARI
   (0055538) (216) 687-2286 1300 Bank One Center 600 Superior Ave. East
   Cleveland, OH 44114-2650 (216) 522-1925 Attorneys for the Plaintiff

   UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN
   DIVISION PETER D. JUNGER, ) CASE NO. ) Plaintiff ) JUDGE ) v. ) )
   DECLARATION OF WARREN CHRISTOPHER, et al. ) PETER D. JUNGER ) (in lieu
   of affidavit pursuant ) to 28 U.S.C. § 1746) Defendants. ) I, PETER D.
   JUNGER, declare as follows: 1. I am a professor of law at Case Western
   Reserve University ("CWRU") in Cleveland, Ohio. I have personal
   knowledge of the facts set forth herein, unless otherwise indicated,
   and if called as a witness could and would so testify. 2. I regularly
   teach a course entitled "Computers and the Law" at the Case Western
   Reserve University Law School. I taught this course in 1986 and each
   year from 1992 to 1995. I am scheduled to teach it again in fall 1996.
   3. My course addresses, among other issues, the patentability of
   computer programs and algorithms, the copyrightability of computer
   programs, trade secret protection of computer programs, government
   regulation of computers and computer programs, and the security of
   computer data and computerized communications. 4. I am currently
   writing a textbook for "Computers and the Law." I have been using a
   version of this as course material for my class. A copy of the first
   21 pages and pages 67-70 of my most recent draft is found in Exhibit A
   of this declaration. 5. In that course, I discuss cryptographic
   programs and algorithms for a number of reasons. For one, the RSA and
   Diffie-Hellman algorithms have been patented in apparent disregard of
   the Supreme Court's decision in Gottschalk v. Benson, 409 U.S. 63
   (1972), holding that algorithms are not patentable. 6. I also discuss
   cryptographic programs in relation to computer security because
   lawyers should be aware of the insecurity of electronic communications
   and should know that encryption can help keep their communications
   confidential, a point of great importance for those who have a legal
   and ethical duty to maintain client confidences. 7. On or about May 1,
   1993, I started writing a simple cryptographic program ("the program")
   for use in class the coming fall. The program was intended to
   demonstrate aspects of computer programs that lawyers who are going to
   deal with computer-related issues should know, such as the nature of
   an algorithm. 8. The program, which was written in 8086 assembly
   language, uses a "one-time pad" as a key and should run on any
   computer running MSDOS 3.0 or higher. My course materials include the
   source code and machine code representations of the program. The
   source code for the program is shown on pages 18-21 of Pl.'s Decl.,
   Ex. A. The hexadecimal representation of machine code is shown in
   Figure 1.3 on page 10 of Pl.'s Decl., Ex. A., and a uuencoded
   representation of machine code is shown in Figure 1.2 on page 9 of
   Pl.'s Decl., Ex. A.. 9. While writing the program, I realized that
   teaching or publishing the program and any related "technical data"
   might be subject to federal export licensing regulations. 10. On or
   about May 7, 1993, I called the Commerce Department's Bureau of Export
   Administration (telephone number (202)482-4811). Eventually I reached
   Mr. Dale Jensen ((202)482-0730), who told me--several times--that I
   would have to apply to the State Department to determine whether State

   UNITED STATES DISTRICT COURT
   NORTHERN DISTRICT OF OHIO
   EASTERN DIVISION



   CASE NO.


PETER D. JUNGER,

             Plaintiff


        v.


JUDGE WARREN CHRISTOPHER,
       DEPARTMENT OF STATE;
WILLIAM J. LOWELL,
       OFFICE OF DEFENSE TRADE CONTROLS;
LT. GENERAL KENNETH A. MINIHAN,
       NATIONAL SECURITY AGENCY,

             Defendants.






   COMPLAINT FOR
   DECLARATORY AND
   INJUNCTIVE RELIEF



   1. This is an action for declaratory and injunctive relief brought by
   a law professor to protect his rights and the rights of others to
   teach, publish and otherwise disclose unclassified cryptographic
   information to foreign students and other foreign persons without

   UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN
   DIVISION PETER D. JUNGER, ) CASE NO. 96 CV 1723 ) Plaintiff ) ) JUDGE
   NUGENT v. ) ) WARREN CHRISTOPHER, DEPART- ) MENT OF STATE; WILLIAM J.
   ) LOWELL, OFFICE OF DEFENSE ) TRADE CONTROLS; LT. GENERAL ) KENNETH A.
   MINIHAN, NATIONAL ) SECURITY AGENCY, ) ) Defendants. ) C BRIEF IN
   SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION X TABLE OF
   CONTENTS SUMMARY OF THE ARGUMENT 1 INTRODUCTION 2 STATEMENT OF FACTS 4
   A. Factual Background 4 B.The Regulatory Framework 6 DISCUSSION 11 I.
   Standards For Granting A Preliminary Injunction 11 II. The Likelihood
   Of Success On The Merits 11 A.ITAR's Registration and Licensing Scheme
   Infringes on Rights of Academic Freedom, Political Speech and Freedom
   of Association. 12 B.ITAR's Registration and Licensing Scheme
   Constitutes an Unconstitutional Prior Restraint. 14 C.ITAR's
   Registration and Licensing Scheme is Unconstitutionally Overbroad And
   Vague. 17 1. The regulations reach a substantial amount of protected
   speech 18 2. The regulations are vague and ambiguous. 19 D.There is no
   Statutory or Constitutional Basis for ITAR's Restrictions on the
   Domestic Publication and Dissemination of Cryptography. 23 III.
   Without the Injunction, the Plaintiff Will Suffer Irreparable Harm 26
   IV. There is Little, If Any, Probability that the Injunction Will
   Cause Substantial Harm 26 V. The Public Interest Is Advanced by
   Issuance of the Injunction 26 CONCLUSION 27 TABLE OF ATHORITIES Cases
   ACLU v. Reno, 1996 U.S. Dist. Lexis 7919 (E.D. Pa., June 11, 1996) 4,
   25 Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd
   Cir. 1983) 18 Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir.
   1996) 4 Bernstein v. U.S. Department of State, 922 F. Supp 1426 (N.D.
   Calif. 1996) 3, 18, 21 Board of Trustees of Leland Stanford Univ. v.
   Sullivan, 773 F.Supp. 472 (D.D.C. 1991) 18 Connally v. General
   Construction Co., 269 U.S. 385 (1926). 19 Dalton v. Specter, 114 S.Ct
   1719 (1994) 24 Dambrot v. Central Michigan University, 55 F.3d 1177
   (6th Cir. 1995) 12, 18 Dames & Moore v. Regan, 453 U.S. 654 (1981). 27
   Dayton Area Visually Impaired Persons, Inc.v. Fisher, 70 F.3d 1474
   (6th Cir. 1995) 25 Elrod v. Burns, 427 U.S. 347 (1976) 25 Forsyth
   County v. The Nationalist Movement, 505 U.S. 123 (1992) 15 Freedman v.
   Maryland, 380 U.S. 51 (1965) 15 FW/PBS, Inc. v. City of Dallas, 493
   U.S. 215(1990) 15 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)
   20 Karn v. U.S. Dept. of State, 925 F.Supp. 1 (D.D.C.1996) 21 Kent v.
   Dulles, 357 U.S. 116 (1958) 25 Keyishian v. Board of Regents of
   University of New York, 385 U.S. 589 (1967) 12, 25 Kleindienst v.
   Mandel, 408 U.S. 753 (1972) 12 Kolender v. Lawson, 461 U.S. 352 (1983)
   18 Kunz v. New York, 340 U.S. 290 (1951) 15 Lakewood v. Plain Dealer
   Publishing Co., 486 U.S. 750 (1988) 12, 16 Leonardson v. City of East
   Lansing, 896 F.2d 190 (6th Cir. 1990) 20 Members of City Council v.
   Taxpayers for Vincent, 466 U.S. 789 (1984). 15 Minarcini v.
   Strongsville City School Disr., 541 F.2d 577 (6th Cir. 1976). 12
   Minneapolis Star & Tribune Co. v. Comm. of Revenue, 460 U.S. 575
   (1983) 18 Nebraska Press Assoc. v. Stuart, 427 U.S. 539(1976). 14 New
   York Times Co. v. United States, 403 U.S. 713(1971) 14, 15

   UNITED STA TES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN
   DIVISION PETER D. JUNGER, ) CASE NO. 96 CV 1723 ) Plaintiff ) JUDGE
   NUGENT ) v. ) ) DECLARATION OF WARREN CHRISTOPHER, et al. ) GINO J.
   SCARSELLI ) ) Defendants. ) I, GINO J. SCARSELLI, declare as follows:
   1. I am one of the attorneys for the plaintiff, Peter D. Junger, in
   the instant action. I am duly admitted to practice law in the State of
   Ohio and the Northern District of Ohio. I have personal knowledge of
   the facts set forth herein and if called as a witness would so
   testify. 2. The exhibits to Plaintiff's Brief in Support of the Motion
   for Preliminary Injunction filed in the instant action include the
   following: Excerpts from Plaintiff's Course Materials (Ex. A);
   National Research Council ("NRC") Press Release, dated May 30, 1996
   (Ex. B1); Excerpts from NRC Prepublication Report, dated May 30, 1996
   (Ex. B2); Declaration of James Demberger and Related Correspondence
   (Ex. C); Department of Justice's Office of Legal Counsel ("OLC"),
   Memorandum dated July 1, 1981 (Ex. D); OLC, Memorandum dated July 5,
   1984 (Ex. E); OLC, Memorandum dated May 11, 1978 (Ex. F); Declaration
   of William P. Crowell (Ex. G); Letter from Martha C. Harris to Phil
   Karn dated October 7, 1994 (Ex. H); Letter from William R. Robinson to
   Phil Karn, dated March 2, 1994 (Ex. I); and Declaration of Brian
   Behlendorf (Ex. J);. 3.I received Exhibits B2, D, E and F from Lee
   Tien and Cindy A. Cohn, attorneys for Daniel Bernstein in Bernstein v.
   U.S. Dept. of State et al., Case No. 95-00582, United States District
   Court for the Northern District of California. 4. Exhibits B2, D, E
   and F are true and correct copies of the exhibits received from Lee
   Tien and Cindy A. Cohn. A copy of Lee Tien's Declaration is attached
   hereto. 5. I received Exhibits G, H and I from Thomas Cooper, attorney
   for Philip Karn in Karn v. U.S. Dept. of State, Case No. 95-1812,
   United States District Court for the District of Columbia. 6. Exhibits
   G, H and I are true and correct copies of the exhibits received from
   Thomas Cooper. 7. Exhibit A is a true and correct copy of excerpts
   from Prof. Junger's most recent version of his course book. 8. Exhibit
   B1 is a true and correct copy, with only minor formatting changes, of
   the NRC Press Release that I downloaded on July 11, 1996, from the
   Electronic Privacy Information Center World Wide Web site at
   http://epic.org. 9. Exhibits A and J are true and correct copies of
   the declarations received from James Demberger and Brian Behlendorf,
   respectively. I declare under penalty of perjury under the laws of the
   United States that the foregoing is true and correct and that this
   Declaration was executed at Cleveland, Ohio, on this the ___ day of
   August, 1996. ____________________ Gino J. Scarselli