CORPORATE DISCLOSURE STATEMENT

TABLE OF CONTENTS

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES v  (not included in this version)

JURISDICTION 1

STATEMENT OF INTEREST OF AMICUS CURIAE 1

ISSUES PRESENTED FOR REVIEW 4

STATEMENT OF THE CASE 5

SUMMARY OF ARGUMENT 5

ARGUMENT 8

I. The Regulations Violate the First Amendment 8

A. Source Code, the Language of Academic Discourse on Cryptography, Is Pure Speech 8

B. O’Brien Intermediate Scrutiny Is Inapplicable Because Source Code is Pure Speech, Not Conduct With Expressive Elements 15

C. Although Prior Restraints on Encryption Source Code Are Presumptively Invalid, the Regulations at Issue Would Fail Even Under O’Brien 22

1. The Asserted Government Interest Cannot Justify Classification of Encryption Source Code  23

2. The Asserted Interest in National Security Is So Broad that Wholesale Restrictions on Speech Are Inevitable 32

II. The Regulations Violate Equal Protection Applied to the Federal Government Through the Fifth Amendment 33

III. The Regulations Violate the Privileges and Immunities Clause as Applied to the Federal Government under the Fifth Amendment by Infringing the Right to Make Use of the Most Effective Commercially Available Means of Communication 39

A. The Right of Effective Access to the Prevailing Communications Infrastructure Is a Privilege of American Citizenship 40

B. Precedent Limiting the Force of the Fourteenth Amendment’s Version of Privileges and Immunities Has No Application to the Right of Effective Communication Asserted Here Against the Federal Government 44

C. Access to the Internet is Well Within the Traditional Privilege of Citizen Access to Effective Means of Communication, And Therefore May Not be Abridged by Government Efforts Impeding Internet Security 49
 

IV. The Regulations Violate the Constitutional Right of Privacy. 54

A. Mr. Bernstein’s Speech Is Critical to the Privacy Needs of Its Potential Recipients. 54

B. The Critical Nature of This Censored Speech Is Significant to the Constitutional Analysis. 57

C. The Privacy Rights of Recipients Require That the Judgment of the District Court Be Affirmed. 58

CERTIFICATE OF COMPLIANCE  (not included in this version)

CERTIFICATE OF SERVICE  (not included in this version)

ENDNOTES
 

JURISDICTION

STATEMENT OF INTEREST OF AMICUS CURIAE

The Association's interest in this case stems from its longstanding commitment to open scientific discourse.  America's technological preeminence is widely attributed to the freedom it traditionally accords its scientists to communicate -- to engage in such quintessentially scholarly pursuits as teaching a class, publishing research, speaking at conferences, and, perhaps most importantly, exchanging information with peers worldwide.  AAAS therefore has built a consistent record of vigorous opposition to governments' efforts to restrict the communication of unclassified scientific and technical information.

In keeping with this commitment, AAAS has become especially concerned of late about the U.S. Government's attempts to regulate encryption technology, and the impact that these restrictions are likely to have on the science of cryptography.   As the District Court pointed out with approval in its opinion, AAAS submitted comments earlier this year opposing the very regulations at issue in this case.¹  The Association demonstrated in those comments and elsewhere that the Government's Regulations prevent some of the world's best scientific minds from developing the security that an ever-more global information infrastructure urgently demands.  When undue regulation burdens and even prevents worldwide discourse concerning cryptography, new encryption methods cannot be tested adequately, workable international encryption standards cannot be developed, and scientists -- unable to publish or obtain essential peer review without fear of prosecution -- cannot be persuaded to enter the field of cryptography at all.

AAAS believes that these results are intolerable, especially given the economic, political, military, and even social importance of cryptography to the United States and the rest of the world.  AAAS submits this brief as amicus curiae to draw the Court's attention specifically to the dramatic implications that this case has for free exchange of information, the mainstay of the international scientific community that AAAS represents.

Throughout its history, the Association also has championed human rights.  This is an essential complement to AAAS's campaign against the abridgement of scientific freedoms.  Today, AAAS provides technical assistance to international human rights groups in the design and development of secure information management systems used for large-scale human rights data collection and analysis.  Because those systems concentrate politically volatile information in computers, they place the sources and collectors of the information in grave danger.  Strong cryptography is vital to prevent discovery, infiltration, and retaliation by hostile regimes.

Because the Regulations at issue in this case would prevent American scientists from supplying encryption assistance needed for human rights groups to do their jobs, including development of new and strong algorithms and training in their use, they endanger the ability of the free world to obtain the sensitive, timely, and accurate data needed to monitor the progress of human rights throughout the world.  AAAS is already on record as opposing the Regulations on these grounds.

For these reasons, AAAS respectfully submits this brief as amicus curiae in support of the District Court's decision enjoining enforcement of the defendants' Export Administration Regulations.  This brief is filed with the written consent of each of the parties pursuant to Fed. R. App. P. 29.
 

ISSUES PRESENTED FOR REVIEW

1. Whether computer source code used to encrypt data is pure speech, and therefore entitled to plenary protection under the First Amendment.

2. Whether the Regulations violate the Equal Protection Clause of the Fourteenth Amendment, as applied to the Federal Government through the Fifth Amendment.

3. Whether the Regulations abridge the privileges and immunities of United States citizens guaranteed under the Fifth and Fourteenth Amendments.

4. Whether the Regulations violate the penumbral right of privacy guaranteed under the Constitution.

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

2. The Regulations cannot satisfy even intermediate scrutiny because the Government is without power to classify information, such as cryptographic ideas, that is pervasive in the public domain.

3. The Government is similarly without power to make irrational distinctions, as these Regulations do, between cryptography students who are citizens or resident aliens and those who are nonresident aliens, and between cryptography professors who teach only American students and those who teach classes attended by at least one nonresident alien.  Generalized national security interests lend no support to this irrational distinction, which should be struck down as a violation of the Fourteenth Amendment's equal protection guarantee, as applied to the Federal Government through the Fifth Amendment.

4. The Regulations also deny effective access by scientists and others to the Internet by hindering the development of cryptographic techniques necessary to protect Internet communications.  In so doing, they abridge one of the privileges and immunities of American citizenship, namely, a right of access to our nation's communications infrastructure, a right recognized since the beginning of the Republic.  The Regulations therefore violate the privileges and immunities clause of the Fourteenth Amendment, as applied to the Federal Government through the Fifth Amendment.

5. The Regulations substantially restrict the ability of speakers and recipients alike to safeguard their communications using effective cryptographic measures.  In so doing, they violate established constitutional norms for the protection of privacy interests, unjustifiably hindering scientific progress and jeopardizing the efforts of organizations like AAAS to provide the means of secure communications necessary to promote human rights throughout the world.

Individually and cumulatively, these constitutional concerns -- freedom of expression, equal protection, privileges and immunities, and privacy -- require affirming the judgment of the District Court that the Regulations be enjoined.

ARGUMENT

I. The Regulations Violate the First Amendment

A. Source Code, the Language of Academic Discourse on Cryptography, Is Pure Speech

This Court has recognized that, at some level, all speech is conduct, because "speech in any language consists of the 'expressive conduct' of vibrating one's vocal chords, moving one's mouth and thereby making sounds, or of putting pen to paper, or hand to keyboard."  Yniguez v. Arizonans for Official English, 69 F.3d 920, 934 (9th Cir. 1995) (en banc), cert. granted, 116 S. Ct. 1316 (1996), vacated on other grounds and remanded sub nom Arizonians for Official English v. Arizona, 117 S. Ct. 1055, vacated and remanded, 118 F.3d 667 (9th Cir. 1997).  The embodiments of this speech-producing conduct -- books, audio recordings, computer disks -- can be called "products."  However, that label has no constitutional significance because the product consists of language, "a sophisticated and complex system of understood meanings."  Id. at 934-35.  By definition, language is "pure speech," not conduct, regardless of the form it ultimately takes.  Id. at 935-936.  Products that are language therefore are entitled to full First Amendment protection.  Id. at 934-35 & n.17 (declining to treat choice of language merely as "expressive conduct" meriting "relaxed" First Amendment scrutiny).

The Government's brief misses the importance of the language at issue in this case.  Cryptography cannot be a "flourishing" discipline if cryptographers around the world -- mathematicians, physicists, computer scientists, and engineers -- cannot talk to one another in the language that best communicates the full range of their ideas, and if they cannot freely publish in international journals (print or electronic).²  Gov't Br. at 49 (claiming that EAR leaves open "basic avenues of academic discourse").  Although theoretical ideas in cryptography can be expressed in many ways, including schematic diagrams and mathematical formulae, only computer source code enables cryptographers to communicate ideas in the form that can be definitively proven -- or rejected -- by scientific peers.³

Source code for this reason is not just another carrier for cryptographic ideas that might be conveyed just as well in languages that are more palatable to the Government.  Like concepts expressed in one human language that do not translate literally into another, cryptographic concepts that cannot be expressed in the "native" language of source code cannot be expressed effectively at all.⁴  For this reason, the Government's explanation that, "we are regulating a product but not the information the product conveys," is wholly inaccurate.

The Government also errs in its focus on what encryption source code can do, as opposed to what it conveys to its intended audience.  The Government's concern is that source code is self-executing; a foreign recipient of source code can, without understanding that source code, convert it into object code capable of directing a computer to encode text.  In this, the Government claims, source code is different from blueprints, recipes, and other "how-to" materials, each of which the Government apparently would agree are speech.  See Gov't Br. at 28.

The distinction between "self-executing" language and the more familiar language in most technical writing is illusory.  First, source code is not literally self-executing.  It must be put into a properly programmed computer that is configured to "compile" the source code by converting it into machine-executable commands upon the user's instruction to do so.  Second, although "how-to" manuals typically are not self-executing, the intended result often can be achieved with only the most superficial understanding by the person consulting the manuals.  At the very least, if the recipient himself lacks the understanding necessary to bridge the gap between language and result, it is a simple matter to find someone who can.  This is closely comparable to the situation of someone who seeks to install new source code but is unsure of the proper steps.

The District Court was correct that the instructional, functional value of language does not diminish its entitlement to full First Amendment protection.  See Bernstein v. United States Dept. of State, 922 F. Supp. 1426, 1435 (N.D. Cal. 1996) (citation omitted).  For instance, manufacturing specifications expressed in mathematical terms mean something to an engineer, even though those terms might also be translated, using a standard program requiring minimal intervention by the engineer, into object code capable of directing machines to produce the specified product.  Similarly, encryption source code means something to a cryptographer, even if he were to choose not to read or analyze it, but simply to translate it into object code and use it to encode messages.

Because technical speech such as source code often is expressed in an academic context, it merits special constitutional protection.  "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.  That freedom is therefore a special concern of the First Amendment. . . ."  Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (emphasis added).  "Freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge."  Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957 ) (Frankfurter, J., concurring).  See also Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 835 (1995) (university setting "at the center of our intellectual and philosophic tradition"); Widmar v. Vincent, 454 U.S. 263, 276 and 279 n.2 (1981) (Powell, J. and Stevens, J., concurring); Regents of the Univ. of California v. Bakke, 438 U.S. 265, 312 (1978).

Scientists like Professor Bernstein must be free to develop their cryptographic ideas.  Their academic discourse plays a critical role in advancing knowledge about the electronic exchange of information.  This discourse is protected both for its pure academic and its practical value.⁵  As a nation we are increasingly dependent on electronic media like the Internet to convey our most important and sensitive information, be it economic, political, or personal, but our ability to protect that information from malicious interlopers has not kept pace.  Strong encryption algorithms (among other techniques) must be developed, refined, standardized, and commercialized if electronic communication is to be protected reliably against potentially devastating intrusions.

This effort begins with academic freedom, the ability to develop encryption ideas with, and test them against, the very best scientific minds in the world.  Regulations such as the EAR that strike at the very language scientists use to talk to each other "impose a strait jacket upon the intellectual leaders in our colleges and universities."⁶  Sweezy, 354 U.S. at 250.  Absent the most compelling need and the most narrow means of meeting that need, that strait jacket is intolerable. Id. at 251  ("We do not now conceive of any circumstance wherein a state interest would justify infringement of rights in these fields [of academic and political freedom]").

B. O'Brien Intermediate Scrutiny Is Inapplicable Because Source Code is Pure Speech, Not Conduct With Expressive Elements

The O'Brien test permits an intermediate level of First Amendment scrutiny for restrictions on "expressive conduct," actions -- such as burning a draft card, as O'Brien himself did -- that are not themselves speech, but nonetheless convey at least an incidental symbolic message.  United States v. O'Brien, 391 U.S. 367 (1968) (draft card burning); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (nude dancing); Texas v. Johnson, 491 U.S. 397 (1989) (flag burning); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (sleeping in public parks for purposes of demonstration); Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969) (wearing black arm bands to protest war in Vietnam).  Where O'Brien applies, it displaces strict scrutiny, which would require the Regulations to be narrowly tailored to advance a compelling government interest.⁷  Under O'Brien, regulation of expressive conduct is permissible if it furthers an important or substantial government interest; if that interest is unrelated to suppression of speech; and if the incidental burden on speech is no greater than necessary.  O'Brien, 391 U.S. at 377.

Source code is not conduct, however, but speech in its purest form.  It is people talking to one another using a complex system of mutually understood meanings.  O'Brien therefore does not apply.  See Cohen v. California, 403 U.S. 15, 18 (1971) (distinguishing O'Brien on the grounds that defendant was being prosecuted for "the words [he] used to convey his message to the public," not his conduct in the act of communicating those words); Yniguez, 69 F.3d at 936 (holding that choice of language is "pure speech," not "expressive conduct").  O'Brien applies to conduct with "incidental" speech elements, not to speech (like source code) that may have functional elements.

The O'Brien test by its own terms does not apply to "pure" as opposed to "incidental" speech categories.  The O'Brien framework requires that the government's interest be unrelated to the suppression of speech.  The Government cannot satisfy that element in this case, as the Regulations aim directly, not at conduct, but at an entire category of speech.  See Boos v. Barry, 485 U.S. 312, 319 (1988) (holding that a prohibition is not "content-neutral" if it "'extends . . . to prohibition of public discussion of an entire topic.'") (quoting Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537 (1980)).  Because meaningful technical discussion about cryptography cannot take place without using source code, the Regulations effectively take much of the topic of cryptography out of the academic forum.  Strict scrutiny must follow.  Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994) ("Our precedents thus apply the most exacting scrutiny to Regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content") (citations omitted).

The Government attempts to avoid the implications of targeting pure speech.  It argues that, because it had no intent to suppress any particular message when it decided to regulate encryption source code, the Regulations still qualify for O'Brien intermediate scrutiny.

The "intent" element that the Government now attempts to graft onto O'Brien is lifted from the equally inapplicable "time, place, or manner" test.  Reasonable restrictions on the time, place, or manner of engaging in protected speech are acceptable so long as, among other things, they are  '"justified without reference to the content of the regulated speech.'"  See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation omitted).  The "time, place, or manner" analysis only applies, however, when the Government is seeking to accommodate competing demands on the same forum.  See Id. at 790-91 (upholding law requiring all performers at public park bandshell to use city sound equipment as a means of controlling excessive noise that would infringe on other uses of the surrounding park); Clark, 468 U.S. 288 (upholding Regulations prohibiting overnight camping in public parks, even when camping  is part of demonstration, as a means of maintaining condition of park for other visitors); One World One Family Now v. City and County of Honolulu, 76 F.3d 1009, 1012-1013 & n.3 (9th Cir.) (applying time, place, manner analysis to uphold restriction on peddling in a public forum, city sidewalks, as a means of avoiding congestion and visual clutter), cert. denied, 117 S. Ct. 554 (1996).  The Government does not seriously attempt to bring this case in line with the time, place, or manner cases; nor could it.

First, as a "relatively unlimited" and "non-invasive" medium, the Internet is not the kind of forum that requires government intervention (in the form of time, place, or manner restrictions) to allocate scarce forum resources or to assure that no one voice, use, or interest displaces all others.  See Reno v. American Civil Liberties Union, 117 S. Ct. 2329, 2342-43 (1997) (contrasting Internet with more limited and invasive television and radio broadcast spectrum, heavily regulated by the Government).  Unlike a sidewalk, a park, or the finite broadcast spectrum, the Internet that cryptographers use to communicate via source code is not a scarce forum or resource that must be allocated among competing speakers.  Cf. Turner, 512 U.S. at 637-38 and 662-63 (citing government interest in allocation of broadcast licenses due in part to "unique physical limitations of the broadcast medium").  Plainly, the Government is not at all using the Regulations to assign a reasonable time, place, or manner for electronic discourse on cryptography.  Instead, it is altogether banning much of a particular topic of Internet discourse.  A significant portion of scholarly discourse on cryptography will not survive this ban on source code, both because ordinary language cannot express the necessary concepts and because, as a practical matter, academic discourse and publication in a technical field like cryptography will not flourish if it cannot transcend international boundaries.  By definition, such a categorical restriction cannot be "reasonable."  See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986) ("'content-neutral' time, place, and manner Regulations are acceptable so long as they . . . do not unreasonably limit alternative avenues of communication") (emphasis added; citations omitted).

There is a second, even more fundamental flaw in the Government's "intent" argument.  "Time, place, or manner" analysis does not apply to restrictions that are based on content; and regardless of whether the government intended to target any particular message or viewpoint, it targeted content when it banned export of all encryption source code.  See Boos, 485 U.S. at 319 (government neutrality with regard to viewpoint does not render ban on entire category of speech content-neutral).  In Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993), the Court invalidated an ordinance banning news-racks from public sidewalks if they contained commercial publications, while permitting news-racks containing newspapers.  Even though the city acted with no apparent animus toward any of the ideas expressed in the banned commercial publications, its decision to remove an entire category of speech -- commercial speech -- from public sidewalks was deemed an unconstitutional content-based restriction.  Id. at 429-30 ("by any commonsense understanding of the term," a ban on an entire class of speech is content-based).  Like the City of Cincinnati, the Government here has chosen to target a speech topic, namely, discourse about cryptography, in the native language of cryptography.  See Id.

For these reasons, O'Brien cannot fit the pure academic speech at issue in this case.  The fact that O'Brien and the time, place, or manner cases may overlap in some cases, as when expressive conduct is regulated in a public forum,⁸ does not mean that the two lines of authority can be combined to ban speech that neither could reach on its own.

C. Although Prior Restraints on Encryption Source Code Are Presumptively Invalid, the Regulations at Issue Would Fail Even Under O'Brien

As Mr. Bernstein demonstrates in his own brief, these barriers are insuperable for the Government.  But because the scientists who comprise AAAS engage every day in technical speech that is at risk of being mistaken for conduct,  we argue separately that, even if the lesser standard of O'Brien did apply to source code, Mr. Bernstein must still prevail.  This is because the Regulations in fact do not further a substantial government interest, and because the asserted interest is so broad that the EAR unavoidably burden speech far more than necessary.  See O'Brien, 391 U.S. at 377.

1. The Asserted Government Interest Cannot Justify Classification of Encryption Source Code

Judicial recognition of the right to keep secrets is perhaps most directly informed by established principles of trade secret law.  Under that body of law, information cannot be secret unless its value is derived from not being generally known to the public (and it is the subject of reasonable efforts to maintain its secrecy).  See, e.g., Cal. Civ. Code § 3426.1(d) (Deering 1997).  Maintaining secrecy is essential.  Absent reasonable efforts to limit access and disclosure of information, information that finds its way into the public domain is not protectable as a secret.  See, e.g., MAI Sys. Corp. v. Peak Computer, 991 F.2d 511, 521 (9th Cir. 1993)), cert. dismissed, 510 U.S. 1033 (1994); Vacco Indus., Inc. v. Van Den Berg, 5 Cal. App. 4th 34, 50 (1992).  It is axiomatic, moreover, that only the owner of information can take the steps necessary to protect it, and that only the owner can properly appropriate the secret once created.  See, e.g., Morton v. Rank America, Inc., 812 F. Supp. 1062, 1073 (C.D. Cal. 1993).

Each of the major "national security" cases that the Supreme Court has addressed verifies that these basic trade secret notions have currency even when Government secrecy is at issue.  The Government's interest in classifying information can be recognized only to the extent that the secrets it protects are its own and are still in fact secrets.

In Snepp v. United States, 444 U.S. 507 (1980), the Court held that a former CIA agent could be enjoined from publishing sensitive information about certain CIA activities in Vietnam, based on a term in his employment contract requiring him to submit all such publications for advance review by the CIA.  Despite the impact on Snepp's right to express himself, the result is justified under trade secret principles.  Snepp's book contained information that belonged to the Government, and that he would not have learned except through his employment with the CIA.  Like many employers, the CIA protected its secrets by having Snepp release some of his expressive interests in exchange for employment.  Id. at 507-08.  See MAI Systems, 991 F.2d at 521 (employer limitations on employee access to, and use of, trade secrets);  see also Haig v. Agee, 453 U.S. 280 (1981) (upholding revocation of passport for former CIA agent who admitted to using information learned in the course of his employment to expose CIA operations abroad).

The Court has had far greater difficulty when the information is not secret or is not in the hands of a government employee bound by oath and contract not to disseminate the information.  No amount of concern about national security was sufficient, for example, when the Court refused to enjoin publication of sensitive government information that had already been leaked to the press in the Pentagon Papers case.  Pentagon Papers, 403 U.S. 713 (1971).  As Justice White noted in concurrence, "publication has already begun and a substantial part of the threatened damage has already occurred.  The fact of a massive breakdown in security is known, access to the documents by many unauthorized people is undeniable, and the efficacy of equitable relief against these or other newspapers to avert anticipated damage is doubtful at best."  Id. at 733.  Similarly, in Snepp, while Snepp was required to place profits from his unauthorized publication in constructive trust, no effort was made to retrieve his work from the public domain.  See 444 U.S. at 508.

The mathematics underlying symmetric and asymmetric key cryptography are known the world over, as are the methods for implementing those principles in encryption hardware and software.  This is not to say that scientists such as Professor Bernstein do not contribute very significant improvements, innovations, and standards critical to the development of the field of cryptography.  But Snuffle is only one possible variation on well-recognized mathematical principles.  The means exist at this very moment -- indeed, they are common -- to encode messages with sufficient strength to frustrate American intelligence operations in the very manner the Government anticipates.  The Government gains precisely nothing from banning the export of source code.  Information in the public domain is not a secret and cannot be classified and protected as such.  The genie cannot be forced back into the bottle.  Thus, the Government is not free to assert ownership over Professor Bernstein's speech as if he were a government employee rather than a private citizen, and any thought that it can classify his ideas as secrets must dissolve with the recognition that those principles are already in the national and international public domain.  Because encryption source code is not a "secret," as that term has been defined and applied in our law, this Court must find that the Government has no substantial interest in protecting it through export control, or any other means.⁹
 
The radical nature of the Government's effort to classify source code as a national secret is apparent when one imagines the same efforts being made in another, perhaps more accessible, context.  During World War II, many of the Navajo Indians in the United States Marine Corps were recruited and deployed as "Navajo Code Talkers" in the Pacific theater.¹⁰  The Navajo Code was an oral code consisting entirely of common Navajo words.¹¹  Those words could be translated to English words that, in turn, corresponded to military terms that did not exist in Navajo.¹²  The Navajo word, "gini," for example, means "sparrow hawk," which is the name signifying a dive bomber.¹³  The Japanese were never able to break the code, and it was credited with contributing substantially to American military success, particularly at Iwo Jima.¹⁴  The code's success stemmed from the fact that, while the Navajo language's tonal complexity rendered it almost incomprehensible to outsiders, it was clear to native speakers, who used it to exchange messages rapidly and accurately.¹⁵

Although the United States did swear the Navajo marines to secrecy about the code so that it could be used later in Korea and Vietnam,¹⁶ that restriction obviously could operate only on that part of the code that was proprietary to the United States, that is, the particular associations established between English words translated from the Navajo, on the one hand, and particular military terms, on the other.  Navajo marines were asked not to share their experiences as Code Talkers (indeed, letters home were intercepted during the war);¹⁷ but national security was never thought to require Navajos to stop speaking their language altogether after the war for fear that a future enemy would break the code.¹⁸

Nevertheless, the Government maintains in this case that for national security reasons it can appropriate a language -- encryption source code that it did not invent and that its enemies (and everyone else) can readily procure elsewhere.  It apparently does this on the grounds that encryption source code, like Navajo, is comprehensible to only a relatively few human beings (cryptographers), and on the erroneous assumption, properly not made in the case of the Navajo, that its "speakers" can communicate just as well using a less sensitive medium.

This extraordinary effort at making non-governmental language secret comes without any identification of circumstances exigent enough to merit serious constitutional consideration.  Even assuming that export of certain encryption source code could hinder a war effort, we are not at war.¹⁹  Nor does it appear that there has been any particular connection between the generalized private export of encryption technology and frustration of specific American intelligence or military operations.  Cf. Haig, 453 U.S. 280 (declared purpose of former CIA agent's foreign travel was to dismantle intelligence infrastructure).  Put another way, there is no "clear and present danger" that encryption software exported abroad will significantly increase the harm to our national security.  The harm has already occurred due to the world-wide spread of knowledge about the mathematical basis for, and the technical means for implementing, strong encryption.  See Schenk v. United States, 249 U.S. 47, 52 (1919).

Under the modern formulation of the "clear and present danger" test, a court must "make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression."  Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842-43 (1978).  The Government of course would prefer that strong encryption not be available to foreign intelligence targets.  But a variety of very strong encryption is already widely available outside the U.S.²⁰  Further, it is uncontroverted that any persons who wish to do so can evade the EAR simply by using strong encryption programs bought in the U.S.  In short, the actual barrier to export of strong encryption software is not just porous; it is virtually nonexistent.  This fact wholly undermines any assertion by the Government of an imminent threat that the EAR would stop.

In reality, the Government seeks to regulate the export of ideas that circulate freely within American borders.  Open discussion of ideas cannot be stopped at national borders, however; ideas are very much unlike munitions, physical objects of war whose export can and should be controlled.  Therefore, at the end of the day, it should surprise no one that the interest claimed by he Government is not only insubstantial, but nonexistent.

2. The Asserted Interest in National Security Is So Broad that Wholesale Restrictions on Speech Are Inevitable

II. The Regulations Violate Equal Protection Applied to the Federal Government Through the Fifth Amendment

In classes made up of only U.S. citizens and resident aliens, cryptography may be taught freely, without government interference.  Once even a single nonresident alien enrolls in the class, however, the rules change.  The Government deems the teaching of cryptography to nonresident alien students to be an "export" of encryption technology.  It therefore requires that Professor Bernstein and similarly situated scholars comply with the full-blown EAA/IEEPA scheme and obtain an export license from the Department of Commerce before they are able to teach cryptographic concepts to a class containing even a single nonresident alien student.   Thus, the Regulations single out students because of their alienage, and allows the government to interfere with the content of the scholars' lectures based on the immigration status of the students in their classrooms.   Citizens and resident aliens may be taught cryptography at our universities with no requirement that the professor seek a license from the Government to do so.  The same is not true for nonresident aliens.  The presence of a nonresident alien in the classroom subjects cryptography instruction to government licensing standards.  This distinction bears no relationship to the Regulations at issue.  Hence, neither distinction passes constitutional muster.

The Fifth Amendment Due Process Clause incorporates the Fourteenth Amendment's equal protection guarantee and makes it applicable to the federal government.  Bolling v. Sharpe, 347 U.S. 497 (1954).  Foreign students, including nonresident aliens, are entitled to equal protection guarantees.  Plyler v. Doe, 457 U.S. 202, 210-11 (1982).  Federal legislation that classifies on the basis of alienage violates equal protection guarantees if it is not rationally related to a legitimate government interest.  United States v. Lopez-Flores, 63 F.3d 1468, 1475 (9th Cir. 1995), cert. denied, 116 S. Ct. 794, cert. denied, 116 S. Ct. 795 (1996).  Here, there is no rational relationship between the Government's avowed interest and the classifications made under the Regulations.

The Government asserts that the Regulations are necessary to prevent encryption technology from being disseminated outside of the country.  Preventing this technology from being taught to a particular group of students at American colleges and universities does not accomplish this goal.  Although it is true that nonresident aliens, unless they change their immigration status, will be required to leave the country at some point in time, it also is true that all students, whether U.S. citizens, resident aliens or nonresident aliens, are free to leave the country at any time.  Thus, any student has equal opportunity to disseminate encryption technology abroad.  Requiring a professor to obtain a license before teaching encryption technology to nonresident aliens, but not to U.S. citizens and resident aliens, therefore is irrational because it does not achieve the Government's stated goals.

Indeed, the distinction between resident aliens and nonresident aliens in this context makes no sense.  Many resident aliens formerly were nonresident aliens -- and both classes of aliens are free to travel to their homelands at will.  The Government cannot seriously argue that a change in immigration status from nonresident to resident alien changes the security threat that the alien poses.  Hence, the classification created by these Regulations arbitrarily subjects nonresident aliens to a different set of rules.  Without justification, it denies them the educational opportunities enjoyed by citizens and resident aliens.  In doing so, it denies them their right to equal protection of the laws and violates this country's basic notions of equality.

Scholars such as Professor Bernstein who teach cryptography similarly are denied equal protection.  Since all students who attend cryptography classes have the unimpeded right to travel in and out of the United States, the Regulations irrationally distinguish between professors who teach nonresident aliens and those who do not, by requiring only the former to comply with licensure procedures.  Because cryptography classes are small -- typically 3 to 5 students per class -- the burden of complying with licensing requirements, as well as the time required to obtain the license, very well may cause a scholar (or the institution with which he or she is affiliated) to decide not to offer an encryption technology class to its students, thereby depriving all students of an educational opportunity.

It is irrational to force educational institutions such as Professor Bernstein's to distinguish, for academic, administrative reasons, between citizens and aliens, and between non-resident and resident aliens, before being allowed to offer encryption technology classes.  This is not a question of charging foreign students higher, out-of-state tuition.  Toll v. Moreno, 458 U.S. 1 (1982).  Nor is it a matter of requiring them to maintain health insurance while not imposing the same requirement on U.S. students.  Ahmed v. University of Toledo, 664 F. Supp. 282 (N.D. Ohio 1986), appeal dismissed, 822 F.2d 26 (6th Cir. 1987).  Rather, it affects the substance of the classes foreign students can take, what can be taught in the classes they do take, and what they can learn.
By so affecting the substance of education provided at American colleges and universities, the Regulations undermine our nation's fundamental dedication to academic freedom.  Keyishian, 385 U.S. at 603 (1967) (overturning statute providing for removal of faculty members for seditious utterances or Communist Party membership).  "The essentiality of freedom in the community of American universities is almost self-evident.  .  .  .  To impose a strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation."  Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (invalidating contempt finding following investigation pursuant to Subversives Activities Act in which university professor was asked to disclose the contents of his lectures).  Included among the "four essential freedoms" of a university are the ability to determine "what may be taught [and] how it shall be taught." Id. at 263 (Frankfurter, J., concurring).  Government regulations infringing on these freedoms must be held to exacting scrutiny.  In this instance, the Regulations must be invalidated.

III. The Regulations Violate the Privileges and Immunities Clause as Applied to the Federal Government under the Fifth Amendment by Infringing the Right to Make Use of the Most Effective Commercially Available Means of Communication

Today, that means is the Internet.  In terms of scale, speed, capacity, and almost every other relevant variable, the Internet is far and away the most effective (indeed, revolutionary) method of communication generally available.  Access to it, like access to our public places and our telephones, is a privilege and immunity of American citizenship.  Meaningful Internet access, AAAS submits, requires unhindered development of the cryptographic applications needed to make the Internet secure for citizens who use it.

A. The Right of Effective Access to the Prevailing Communications Infrastructure Is a Privilege of American Citizenship

The citizens' right to use the mails enjoys the same status, although the right is not specifically articulated as a privilege and immunity of national citizenship.  As Justice Brennan wrote, concurring in United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114 (1981):

Just as "streets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions," Hague v. CIO, 307 U.S. 496, 515 . . .  so too the mails from the early days of the Republic have played a crucial role in communication.  The Court itself acknowledges the importance of the mails as a forum for communication:
 
"Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication. . . . In 1775, Franklin was named the first Postmaster General by the Continental Congress, and, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for the Army."  Ante, at 2680-2681 . . . (emphasis added).

The Court further points out that "[t]he Post Office played a vital . . . role in the development of our new Nation," ibid. (emphasis added).

The common thrust of these rights is that they are incidents of a national infrastructure.  The rights are conceived, not only as rights of expression, but as rights to use a national communications apparatus as an effective platform for that expression.  They thus fit squarely within a longstanding definition of privileges and immunities as those rights "which owe their existence to the Federal government, its national character, its Constitution, or its laws."  Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873) (emphasis added); see also Thornton, 514 U.S. at 843-45 ("federal character" of the government and the "relationship between the people of the Nation and their National Government" give rise to "privileges and immunities" flowing to the American people by virtue of their national citizenship) (Kennedy, J., concurring).

This means that the citizen must have such access as is generally available within the prevailing national communications scheme.  The Government is no more empowered to prevent such access than it is to prevent access to the means of traveling throughout the country, or to diminish its citizens' ability to be heard on national issues through the representatives of their choice.  See Crandall v. Nevada, 73 U.S. (6 Wall.) 36, 48-49 (1867) (right of interstate travel)²³; Thornton, 514 U.S. at 843-45 (states prohibited from abridging national privileges and immunities by burdening right to vote for national representatives) (Kennedy, J., concurring).

B. Precedent Limiting the Force of the Fourteenth Amendment's Version of Privileges and Immunities Has No Application to the Right of Effective Communication Asserted Here Against the Federal Government

At issue in the Slaughter-House Cases was a state-created monopoly challenged as an infringement of the privileges and immunities guaranteed against state infringement under the recently ratified Fourteenth Amendment.  In rejecting that challenge, the Court had occasion to collect only those privileges and immunities that the national government had authority to prevent the sovereign states from abridging.  Because the challenge was to state legislation, there was no occasion to consider or recite the full range of privileges and immunities that could be enforced against the national government.

Indeed, the latter rights went well beyond the "short list" first announced in Justice Miller's Slaughter-House opinion.  All of the amendments constituting the Bill of Rights, for instance, fit within the Slaughter-House definition of "privileges and immunities," because they establish rights "which owe their existence to the Federal government, its national character, its Constitution, or its laws."  This is true even though these rights, as originally conceived, were not enforceable against the states.  83 U.S. (16 Wall.) at 79.  Justice Miller had no reason to allude to the Bill of Rights as a compendium of privileges and immunities enforceable against the federal government.²⁴

The distinction between the two kinds of privileges and immunities is manifest in United States v. Cruikshank, 92 U.S. 542 (1876), in which the Court identified a First Amendment right, enforceable at that point only against the Federal Government, "to assemble and to petition the Government for a redress of grievances."  The Court identified a far narrower version of that right as a privilege and immunity enforceable against the states, namely, "[t]he right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances."  Id. at 552 (emphasis added).²⁵  Twining itself makes plain that the Court was reluctant to articulate an expansive list of privileges and immunities, not because it was concerned about the vulnerability of the Federal Government to assertions of rights against it (as in this case), but because it was quite passionately concerned that the states would lose their sovereignty if they could be made to answer for abridgment of federal rights.  See, e.g., Twining, 211 U.S. at 92 ("[W]henever a new limitation or restriction is declared [against a state], it is a matter of grave import, since, to that extent, it diminishes the authority of the state, so necessary to the perpetuity of our dual form of government, and changes its relation to its people and to the Union") (emphasis added).²⁶

Thus, whatever modern courts might make of the unfulfilled promise of the Fourteenth Amendment's privileges and immunities clause as a curb on state power, especially now that the feared federal encroachment has come about through the amendment's other clauses,²⁷ one thing is clear:  Slaughter-House and its progeny did not involve and do not limit the assertion of privileges and immunities in cases like this one, where the rights claimed are claimed against the Federal Government only.  See Palko v. Connecticut, 302 U.S. 319, 326 (1937) (distinguishing between "immunities and privileges" guaranteed as against the federal government, which include the guarantees of the Bill of Rights, and "privileges and immunities," a narrower subset of rights incorporated against the states through the Fourteenth Amendment on the theory that "neither liberty nor justice would exist if they were sacrificed") (citation omitted).²⁸

C. Access to the Internet is Well Within the Traditional Privilege of Citizen Access to Effective Means of Communication, And Therefore May Not be Abridged by Government Efforts Impeding Internet Security

The Internet also enables a kind of communication that until now was never so direct or reliable, namely, international communication.  The ability to communicate effectively internationally as well as nationally is an attribute of national citizenship, because the very concepts of "domestic" and "foreign," and our status as individual constituents of a world community, come to us in the first instance by and through our status as citizens of a nation.  See Crandall, 73 U.S. (6 Wall.) at 44 (citing "authority to regulate commerce with foreign nations" as exclusively federal, and including within privileges of U.S. citizenship the "right of free access to [U.S.] sea-ports, through which all the operations of foreign trade and commerce are conducted") (emphasis added).³⁰  International communication via the Internet has been an especial boon to scientists, who more easily than ever before can test their ideas against the best scientific minds in the world.  Reams of scientific data that only a few years ago might have taken days or hours (at best) to convey in useable form across state and national boundaries are now conveyed in minutes or seconds.  This enhanced flow of information greatly enhances the prospects for scientific advancement.

The privilege of effective access to the Internet is therefore firmly rooted in a tradition of access to effective means of communication.  There is much to suggest, moreover, that Internet access should command even more respect than the right of access to other communications media.  The Internet is perhaps the most democratic medium yet conceived.  As the Supreme Court recognized, access is inexpensive, space is plentiful, and use by the general population becomes more pervasive with each passing year.  Reno, 117 S. Ct. at 2344.  At the same time, unlike traditional media, one person's use of the medium generally does not restrict another's:  "'[c]ommunications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden.  Users seldom encounter content 'by accident.'"  Id. at 2343 (citation omitted).  For these reasons, the Court noted, "the vast democratic fora of the Internet [have not] been subject to the type of government supervision and regulation that has attended the broadcast industry."  Id.  Access to the Internet therefore must be among privileges and immunities of federal citizenship.

The Regulations at issue in this case trench upon this freedom in a devastating way.  Electronic communications, for all their wonders, are more vulnerable than any other technology to interception and fraud.  Without strong cryptographic protection, bank transfers, legal documents, trade secrets, and love letters would go virtually unguarded from sender to addressee.  Messages could be read by eavesdroppers, changed surreptitiously by criminals intent on fraud, or faked entirely by malicious attackers.  See generally Froomkin, The Metaphor is the Key:  Cryptography, The Clipper Chip, and the Constitution, 143 Univ. Penn. L. Rev. 709 (1995).  Prohibiting export of encryption technology, as the Regulations do, hinders Internet communications by making it more difficult to secure these communications.  Further, in order to comply with the Regulations, American scientists must not: (a) seek feedback from their international colleagues on their cryptographic ideas, because this would involve "exporting encryption software"; or (b) help their international colleagues develop their own ideas, for the same reason.  In essence, the Regulations forbid American citizens from meaningful involvement in the development and use of cryptographic applications that are critical to their own secure use of the very best generally available means of communication.

Ultimately, according to the Government, we are free to exercise our privilege of access to effective communication methods, but our access to the means necessary to make this access secure and reliable, we are told, must be sharply constrained.  From any perspective, however, the EAR abridges the privileges and immunities of American scientists, and indeed of all U.S. citizens, guaranteed under the Fourteenth Amendment.

IV. The Regulations Violate the Constitutional Right of Privacy.

A. Mr. Bernstein's Speech Is Critical to the Privacy Needs of Its Potential Recipients.

The content that the Government seeks to censor will be crucial to, and may even save the lives of, some would-be recipients.  As cryptographic techniques further develop and their benefits are disseminated, for example, the work of human rights advocates throughout the world will become less difficult and dangerous.  AAAS, through its efforts in support of international human rights, knows first-hand of the perils facing these humanitarians and those who depend on them.  Human rights workers are in dire need of powerful tools to make their communications private and to ensure the integrity and authenticity of their communications.  Without sophisticated encryption tools, such as described by Mr. Bernstein's communications, human rights workers (some of whom are United States citizens) in countries with oppressive governments will continue to be subject to torture and other reprisals for their communications to and from the United States and elsewhere.  Moreover, out of concern for the recipients' safety, American human rights workers will curtail their efforts to reach the oppressed abroad because they will be unable to ensure the privacy of their communications.³³

Besides human rights speech and other political speech, the further development of cryptographic techniques also will likely bring privacy benefits to intimate speech.  As the Internet increasingly becomes a medium for husbands, wives, and others to communicate intimately, their privacy will be at risk from governmental and non-governmental eavesdroppers.  If not censored, cryptographic techniques, including encryption, have the potential to eliminate much of this risk.

B. The Critical Nature of This Censored Speech Is Significant to the Constitutional Analysis

Here, the Government cites the undifferentiated worry that the use of encryption "by hostile foreign governments and individuals abroad could jeopardize the national security and foreign policy interests of the United States."  Gov't Br. at 19.  The Government's position would therefore effectively limit the "level of discourse" reaching  those in legitimate (and indeed compelling) need of cryptographic techniques to that level which we would wish for a hostile, and technologically insophisticated, foreign government.
The Constitution does not permit the government to hamper privacy interests using such an unrealistic justification.  Rather, the Consitution protects listeners as well as speakers.  See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-58 and n.15 (1976) (noting that regulation of speech cannot be justified solely on the basis that the recipient could receive the information by some other means, and suggesting that "the recipients' great need for the information sought to be disseminated" can enhance a First Amendment claim).  The importance of Mr. Bernstein's information to the potential recipient must weigh heavily in this Court's analysis.

C. The Privacy Rights of Recipients Require That the Judgment of the District Court Be Affirmed

The Supreme Court has also noted that "[h]istory abundantly documents the tendency of Government -- however benevolent and benign its motives -- to view with suspicion those who most fervently dispute its policies."  United States v. United States Dist. Ct. for E.D. of Michigan, 407 U.S. 297, 314 (1972).  "The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.'"  Id.  Thus, many in the United States and elsewhere "understandably" feel a "deep-seated uneasiness and apprehension that this capability [to wiretap] will be used to intrude upon cherished privacy of law-abiding citizens."  Id. at 312.  If not censored, cryptographic applications have the potential to alleviate this danger and to foster political speech both here and abroad.

Although specific circumstances can arise in which the Government is justified in using technology to eavesdrop on private communications through wiretapping or other means, this does not justify the Government's generally depriving law-abiding people of the opportunity to learn how to make their communications more secure.  Indeed, the same decisions that recognize the limited privilege of the Government to wiretap tread cautiously around the potential for abuse and strongly suggest that the privilege should not be expanded.  See United States Dist. Court for E.D. of Michigan, 407 U.S. at 312 (explaining that, "even when employed with restraint and under judicial supervision," "employment by Government of electronic surveillance [was not] a welcome development").
Today, the Internet offers the potential for maintaining heretofore unachievable privacy in long-distance communication.  Mr. Bernstein's work furthers this goal, and concomitantly the "[e]ffective advocacy of both public and private points of view, particularly controversial ones."  See NAACP, 357 U.S. at 460 (explaining the importance of associational rights to such effective advocacy).

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent."  Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).  "It is now well established that the Constitution protects the right to receive information and ideas."  And "that right takes on an added dimension" where privacy is at stake.  Stanley v. Georgia, 394 U.S. 557, 564 (1969).  Thus, even putting aside Mr. Bernstein's constitutional right to speak, lecture, and consult his peers freely, the additional privacy rights of his would-be listeners mandate that the District Court's judgment be affirmed.

CONCLUSION

ENDNOTES

1. These comments are found in the Appendix to this brief.
2. The First Amendment protects discourse between American citizens and their foreign correspondents.  See infra, note 30.
3. To take only one example, a particular mathematical formula may describe a technique that in theory is practically unbreakable (given available technology).  In any given computer implementation, however, the technique may contain flaws that are inherent in the translation from the mathematics to the computer source code.  The code is therefore an inseparable part of the definition of the technique.  Like all good science, cryptographic techniques are tested by providing peers with the opportunity to criticize them.  Encryption schemes are criticized by trying to "crack" them.  Peer review is one of the cornerstones of scientific methodology and represents, in its broadest sense, the scientific community's effort to assure a certain minimum level of quality so that scientists and others can rely on the results of reported scientific research.  Moreover, peer review contributes to the advancement of science through the screening of scientific work, and by helping proponents of new hypotheses improve their research and interpretations.  As the U.S. District Court for the District Columbia recognized:

Scientific truth and the acceptability of scientific procedure are not normally established by public opinion polls.  The scientific community uses entirely different methods for such purposes (e.g., articles in learned journals, seminars, acceptance at institutions of higher learning) . . . . [These procedures] are time-honored precisely because scientific truth generally requires this kind of maturation of a consensus.
Dowd v. Calabrese, 585 F. Supp. 430, 432 (D.D.C. 1984).
 

4. Source code is also "universal" language, enabling scientists around the world to share ideas without first translating them into unfamiliar tongues.
5. Besides cryptography, there numerous other scientific disciplines, including chemistry, biology, and physics, that conduct research into areas involving the communication of raw data or "source code" in its broadest sense.  For example, geneticists are concerned with DNA, the building blocks of life, which is very similar to computer source code because it has a functional role paralleling the expressive character of the codes described by researchers.  Through the government-sponsored work of the Human Genome Project, researchers are communicating and sharing genetic sequence data (raw source code) with their colleagues around the world through the Internet in large, distributed databases.
6. The danger to U.S. standing in the field of cryptography is manifest.  While the scientists of the rest of the world discourse freely, their American counterparts must be content with an abridged version of academic debate.  This cannot fail to produce lower quality work than would otherwise emerge from our universities.
7. Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983).
8. See Clark, 468 U.S. at 294 ("regulation forbidding sleeping [overnight in public parks] is defensible either as a time, place, or manner restriction or as a regulation of symbolic conduct").
9. It is important to remember that the Government allows this "secret" to be exchanged freely within our borders through unsecured communications media.  This calls into further question the genuineness of the Government's asserted interest.
10. See generally Nathan Aaseng, Navajo Code Talkers (1992); Suman Brandrapalli, "The Radio Code the Japanese Couldn't Crack," Christian Science Monitor, Jan. 7. 1997, at 17; Dallas Morning News, "Navajo Code Helped Allies Win World War II,"  The Gazette, Nov. 7, 1995, at B6; Jeffrey Staggs, "How to Keep a Secret: The Navajo Code Talkers," The Washington Times, Feb. 17, 1995, at C15; Bruce Watson, "Jaysho, moasi, dibeh, ayeshi, hasclishnih, beshlo, shush, gini, World War II Voice Code," Smithsonian, Aug. 1993, at 34.
11. See generally Navajo Code Talkers, at 23-37.
12. Id.
13. Id. at 31.  Alternatively, the first letter of English words translated from the Navajo could be used to spell out words alphabetically.  Id. at 32.
14. Navajo Code Talkers, at 88-99.
15. Smithsonian, at 34
16. Navajo Code Talkers, at 104.
17. Id.
18. "Language is at the core of [Navajo] culture, songs, prayers, and way of life.  Without it, the Navajos believe, the spirit of their people would die."  Gazette, at B6.
19. "Our cases have thus far indicated that [the ban on prior restraints may be overridden] only when the Nation 'is at war,' Schenk v. United States, 249 U.S. 47, 52 (1919), during which times '[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.'  Near v. Minnesota ex. rel Olson, 238 U.S. 697, 716 (1931)."  Pentagon Papers, 403 U.S. at 726 (Brennan, J., concurring).
20. See, e.g., Carol Matlack, Up From the Wreckage of Russian Science, Business Week, Oct. 27, 1997, available in LEXIS, News Library, Curnws File;  Rep. Sam Gejdenson, USA Trade: Encryption Export Ban Dooms Software Sector, EIU ViewsWire, Oct. 24, 1997, available in LEXIS, News Library, Curnws File (in 1997, Sun Microsystems, Inc. announced that it will sell advanced encryption software from a Russian supplier to worldwide customers).
21. Section One of the Fourteenth Amendment states:  "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States."  The privileges and immunities of national citizenship are enforceable against the Federal Government as well as the states, however.  See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 843-44 (1995) (emphasizing that privileges and immunities are enforceable by virtue of federal citizenship, not just through the Fourteenth Amendment) (Kennedy, J., concurring); Tribe, American Constitutional Law § 7.4, 558 n.23 (1988) (Fourteenth Amendment privileges and immunities absorbed through Fifth Amendment due process clause); Bolling, 347 U.S. at 500 ("In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government") (citation omitted; emphasis added).
22. Justice Brennan and the majority did not differ in their assessment of the citizen's traditional right to post and receive mail.  The question in Greenburgh was instead whether the traditional use of the mails included a right to bypass the delivery system by placing unstamped notices and pamphlets in private letter boxes.  453 U.S. 114 (upholding against First Amendment challenge statute prohibiting deposit of unstamped material in letter boxes).
23. "For all the great purposes for which the Federal government was formed we are one people, with one common country.  We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states."  Crandall, id.  The holding in Crandall was later recognized as announcing one of the privileges and immunities of national citizenship.  Slaughter-House Cases, 83 U.S. (16 Wall.) at 79.
24. Section 1983 of Title 42 provides a cause of action for money damages against state actors for violation of privileges and immunities, defined as rights secured by federal laws as well as the Constitution itself.  See Maine v. Thiboutot, 448 U.S. 1, 5 (1980).  Justice Miller's list did not include any of these rights secured by federal law.
25. In fact, the case turned on this distinction.  Cruikshank, id.
26. In this, Twining echoes Slaughter-House.  Writing for the Slaughter-House Court, Justice Miller defended an admittedly debatable interpretation of the Fourteenth Amendment as follows:

The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument.  But when, as in the case before us, these consequences are so serious, so far reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the state governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the state and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.
83 U.S. (16 Wall.) at 78 (emphasis added).
 

27. See Tribe, American Constitutional Law §7-4, 558 (2d ed.1988) (arguing that although privileges and immunities clause may yet be used as a vehicle for protecting individual rights, "[i]t has been historically eclipsed by the equal protection and due process clauses as agents of federal intervention in the civil rights duties of the states"); but see Thornton, 514 U.S. at 843-45 (invoking privileges and immunities theory to prevent state government from imposing term limits on national elected officials) (Kennedy, J., concurring).
28. Even if Twining described a closed universe of privileges and immunities of national citizenship as against even the Federal Government, there would be ample room within that universe for the right urged here.  See Hague, 307 U.S. at 512-13 and 525 (three-Justice plurality held that right of labor unions to meet and distribute their literature to potential members could be subsumed within the recognized privilege of assembling for the purpose of discussing national affairs, despite lack of evidence showing that national affairs were discussed at these meetings, or even that the meetings pertained to industries that were regulated under federal labor legislation).  The recognized right to assemble to discuss national affairs and petition the national government for a redress of grievances, for example (see Twining, 211 U.S. at 97), would be meaningless without the right to gain access to the information necessary to do so.
29. Cf. Greenburgh, 453 U.S. at 138:  "The variety of communication transported by the Postal Service ranges from the sublime to the ridiculous, and includes newspapers, magazines, books films, and almost any type and form of expression imaginable."  (Brennan, J., concurring).
30. Constitutional protection for the right of free discourse between American citizens and their correspondents abroad has been recognized time and again.  See, e.g., Lamont v. Postmaster General of the United States, 381 U.S. 301 (1965) (invalidating on First Amendment grounds statute authorizing Postal Service to detain incoming foreign mail identified as containing communist propaganda); Id. at 308 (noting that, while the First Amendment did not explicitly guarantee U.S. citizens access to the publications at issue, the ability to receive and consider this information was itself one of a number of "fundamental personal rights necessary to make the express guarantees fully meaningful.") (Brennan, J., concurring; citations omitted); Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 509 n.9 (9th Cir. 1988) (quoting district court's "well-reasoned conclusion," not challenged on appeal, that the First Amendment applies abroad).
31. It is appropriate to weigh, and Mr. Bernstein has standing to advance, the privacy rights of others.  The Supreme Court has identified two questions that arise when a person seeks standing to advance such rights:  "first, has the litigant suffered some injury-in-fact, adequate to satisfy Article III's case-or-controversy requirement; and second, do prudential considerations which we have identified . . . point to permitting the litigant to advance the claim?" Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3 (1989) (citation omitted).  Mr. Bernstein's injury is sufficient, as his speech has been censored by the Government and his First Amendment rights violated.  To answer the second question, Supreme Court "cases have looked at three factors:  the relationship of the litigant to the person whose rights are being asserted; the ability of the person to advance his own rights; and the impact of the litigation on third-party interests."  Id.  While Mr. Bernstein cannot know everyone who will receive his communication, his relationship to these persons is the constitutionally significant relationship of speaker-listener.  And because the identity of these listeners cannot be fully known, it may be impossible for them to advance their rights.  Finally, as this brief demonstrates, the impact of this litigation on third-party interests could not be more compelling.  All of these considerations therefore weigh in favor of considering the full impact -- both to Mr. Bernstein and the recipients of his communication -- of censoring the speech at issue.
32. This protection of speech related to a science that can facilitate private communications is analogous to the protection from discriminatory taxation on the paper and ink used by a newspaper to facilitate public communications.  See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983).  The need to protect paper and ink is actually less compelling, however, because, unlike Mr. Bernstein's communications related to encryption, paper and ink are not themselves speech.
33. At stake here are the rights of both citizens and non-citizens.  See American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1063-64 (9th Cir. 1995) (holding that aliens in the United States enjoy full First Amendment rights); Bullfrog Films, Inc. v. Wick, 646 F. Supp. 492, 502 (C.D. Cal. 1986) (holding that the First Amendment protects communications with foreign audiences to the same extent as communications with domestic audiences), aff'd, 847 F.2d 502, 509 n.9 (9th Cir. 1988) (noting the district court's "well-reasoned conclusion," not challenged on appeal).