Tab E

                           January 2, 1997 


VIA FACSIMILE AND MAIL 

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

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


Dear Mr. Coppolino: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                      [3]
 
           hyperlinks to sites where encryption software can be down- 
           loaded? 

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




Sincerely, 


[Signature]


Gino J. Scarselli 
Attorney for the plaintiff 



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