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KARN v. U.S. DEP'T OF STATE

March 22, 1996

PHILIP R. KARN, JR., Plaintiff,
v.
U.S. DEPARTMENT OF STATE, and THOMAS B. MCNAMARA, Defendants.



The opinion of the court was delivered by: RICHEY

 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 meritless constitutional claims because he and others have not been able to persuade the Congress and the Executive Branch that the technology at issue does not endanger the national security. This is a "political question" for the two elected branches under Articles I and II of the Constitution.

 The case arises out of the defendants' designation of the plaintiff's computer diskette as a "defense article" pursuant to the Arms Export Control Act (AECA), 22 U.S.C. §§ 2751-2796d, and the 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 *fn1" 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 plaintiff's First Amendment right to freedom of speech and arbitrarily treats the diskette differently than the book in violation of the plaintiff's Fifth Amendment right to substantive due process.

 The defendants move to dismiss the plaintiff's 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 plaintiff's 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 plaintiff's APA claim as nonjusticiable, and the Court shall grant the defendant's Motion for Summary Judgment with respect to the plaintiff's First and Fifth Amendment claims.

 BACKGROUND

 On February 12, 1994, the plaintiff submitted to the Department of State a commodity jurisdiction request *fn2" 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 plaintiff's 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. P 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. P 5.

 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. P 9. The Deputy Assistant denied the plaintiff's appeal by letter dated October 7, 1994. Joint St. P 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 plaintiff's appeal on June 13, 1995, reaffirming the earlier determinations that the Karn diskette "contains cryptographic software [and] is designated as a defense article under Category XIII(b)(1)." Joint St. P 12; Lowell Decl. P 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 plaintiff 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 Karn, 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 Karn 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 State, 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. *fn3" 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"; *fn4" "Military training equipment including but not limited to attack trainers, radar target trainers . . . and simulation devices related to defense articles"; *fn5" "Body armor specifically designed, modified or equipped for military use . . ."; *fn6" and "Radar systems, with capabilities such as (i) Search, (ii) Acquisition, (iii) Tracking . . . ." *fn7" Likewise, the munitions list specifically addresses cryptographic systems and components and includes the following description:

 
(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 ...

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