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The interpretation set forth in this newsletter should exclude from the licensing provisions of the ITAR most basic scientific data and other theoretical research information, except for information intended or reasonably expected to have a direct cryptologic application. Because of concerns expressed to this office that licensing procedures for proposed disclosures of cryptologic technical data contained in professional and academic papers and oral presentations could cause burdensome delays in exchanges with foreign scientists, this office will expedite consideration as to the application of ITAR to such disclosures. If requested, we will, on an expedited basis provide an opinion as to whether any proposed disclosure, for other than commercial purposes, of information relevant to cryptology, would require licensing under the ITAR.

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Mr. INGRAM. The bottom line is that the regulations themselves have not been amended.

Mr. Foy. That is correct.

Mr. INGRAM. Let me call your attention to a letter of August 29, 1978, from your colleague, Larry Hammond, Deputy Assistant Attorney General, Office of Legal Counsel, to Col. Wayne Kay, Senior Policy Analyst, Office of Science and Technology Policy, Executive Office of the President.

The letter discusses the Edler case that you mentioned, which did present a first amendment challenge to the Munitions Control Act of 1954 and the ITAR. As Hammond notes, his letter to Kay is a followup to the Department's memorandum of 3 months previous to Dr. Press on public cryptography and the ITAR. Hammond goes on to conclude, at page 2 of his letter,

While the ninth circuit's decision in Edler is helpful in resolving first amendment issues with respect to blueprints and similar types of technical data used as a basis for producing military equipment, we do not believe that it either resolves the first amendment issues presented by restrictions on the export of cryptographic ideas or eliminates the need to reexamine the ITAR.

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August 29, 1978

Colonel Wayne Kay
Senior Policy Analyst
Office of Science and Technology

Policy
Washington, DC 20500

Dear Colonel Kay:

As you may know, the United States Court of Appeals for the Ninth Circuit recently decided United States v. Edler, the case presenting a First Amendment challenge to the Munitions Control Act of 1954 and the ITAR that we discussed in our memorandum to Dr. Press on public cryptography. The court, construing the statute and regulation narrowly, held both constitutional, but remanded the case for a new trial because the trial court had given the provisions an overbroad interpretation.

As interpreted by the Ninth Circuit, the Munitions Control Act and accompanying regulations "prohibit only the exportation of technical data significantly and directly related to specific articles on the (United States) Munitions list." Slip op. at 8. In addition, the defendant must know or have reason to know that the recipient of technical information would use it to produce or operate Munitions List items. Slip op. at 9, 10. This narrow construction, stated the court, focuses on the control of conduct and thus does not unconstitutionally interfere with protected speech or establish a prior restraint. Id.

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Application of the Ninth Circuit's formulation to public cryptography seems difficult. First, the emphasis of the court on technical data directly relevant to the manufacture of arms, see Slip op. at 7, is of limited utility where it is the export of technical data itself, not of a tangible end product, that is of chief concern to the government. As we understand it, the export of cryptographic devices poses far less of a threat to national security than the export of sophisticated cryptographic algorithms.

Moreover, under the Ninth Circuit test, it appears that the government would have difficulty prohibiting the export of cryptographic information for scientific purposes, since the exporter would lack the requisite intent. Yet as practical matter, as we noted in our memorandum, once cryptographic information and techniques are made available for scientific purposes, they are available for military purposes as well.

Thus, while the Ninth Circuit's decision is helpful in resolving First Amendment issues with respect to blueprints and similar types of technical data used as a basis for producing military equipment, we do not believe that it either resolves the First Amendment issues presented by restrictions on the export of cryptographic ideas or eliminates the need to reexamine the ITAR.

I am enclosing a copy of the Ninth Circuit's opinion in case you or the other members of the working group have not yet had an opportunity to read it.

Sincerely,

/s/

Larry A. Hammond
Deputy Assistant Attorney General

Office of Legal Counsel

Mr. INGRAM. Your testimony, on the other hand, seems to conclude or states that the constitutional issues have somehow disappeared.

Mr. Foy. The constitutional issues have not disappeared if an attempt needs to be made to regulate the transmission of cryptographic ideas outside the Edler context. What Mr. Hammond was saying, in effect, was that the Edler decision has so narrowed the regulation the criminal provision that makes the regulation enforceable, that we are still left with a problem that raises important constitutional issues.

That is, how do you regulate the dissemination of important and dangerous, say, cryptographic information outside the Edler context? That is an issue that needs to be addressed. It is an issue that is being addressed in the executive branch right now.

Mr. ÎNGRAM. Again, we have a letter of a year and a half ago from Mr. Hammond on behalf of the Department telling the executive branch that there is a need to review the ITAR. As you have stated, there has been no review or change in the regulation.

It gets us, I think, to a very fundamental question. That is the legal effect of an OLC, Office of Legal Counsel, opinion. Once OLC issues an opinion stating that a particular executive branch regulation is unconstitutional, what is the legal effect of that opinion?

Mr. Foy. I think that question has two answers. The Office of Legal Counsel does two different sorts of things. We give counsel, lawyers' advice, in the development of policy and regulations and legislative proposals on an ongoing basis. That was the context in which the ITĀR opinion was given. There was a working group; our views on the legal questions were requested at one point.

We gave an opinion. The group continued to do its work. The problem is one that is still before us and we are still working on it.

The second sort of thing we do is to give final judgments on legal issues that arise in the execution of the laws. In that area, we consider that our function is essentially derivative of the Attorney General's basic statutory function of advising the heads of departments and the President on questions of law.

The Attorney General has long taken the view that although his formal legal views on legal questions are not law in the statutory sense, it is appropriate that they be followed in the executive branch.

Mr. INGRAM. Maybe I am not clear then as to the distinction. You are saying that on the one hand you provide advice. Are there instances when you will make rulings that are binding upon the agencies? Mr. Foy. Yes; there are.

Mr. INGRAM. How would one know, looking at an Office of Legal Counsel opinion, when one is binding and when one is not? This seems pretty clear on its face. The OLC is stating that the regulation is unconstitutional within the narrow grounds that you described.

Mr. Foy. It is still our view that if the regulation were applied in the broad class of cases that concerned us in that opinion, it would present very serious constitutional problems because in those cases it would impose a general licensing restriction on the dissemination of scientific ideas.

Mr. INGRAM. If a lawsuit were initiated involving the same question, would the Department be bound to take that same position, or would the Civil Division feel that it would be able to reinterpret the question and defend the Government, taking the position opposite the OLC opinion?

Mr. Foy. If the Civil Division did not agree with us on the law, the question might well go to the Associate Attorney General or to the Attorney General himself and then a determination would be made. The Attorney General does not always hve to gree with the Office of Legal Counsel.

Mr. INGRAM. I understand.
The opinion has never been made public has it!
Mr. Foy. That is correct.

Mr. INGRAM. We are putting it into the record today. It is now a public document.

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