IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________ ) PHILIP R. KARN, Jr. ) ) Plaintiff, ) ) Civ. A. No. 95-1812(LBO) v. ) ) (Judge Oberdorfer) UNITED STATES DEPARTMENT OF STATE; ) and UNITED STATES DEPARTMENT OF ) COMMERCE; and WILLIAM A. REINSCH, ) Undersecretary of Commerce for the Bureau of ) Export Administration in his official capacity. ) ) Defendants. ) ) ________________________________________________) DECLARATION OF JAMES LEWIS U.S. DEPARTMENT OF COMMERCE I, James A. Lewis, do hereby state and declare as follows: 1. I am the Director, Office of Strategic Trade and Foreign Policy Controls, Bureau of Export Administration, United States Department of Commerce. I have held this position since January 13, 1996. Prior to that time, I was a Foreign Service Officer at the United States Department of State. I am responsible for, among other things, managing the administration of those portions the Export Administration Regulations (15 C.F.R. Parts 730-774) (the EAR) governing the export of encryption items, including responding to requests submitted to the Bureau of Export Administration (BXA) for classifications relating to the licensing requirements under the EAR for such items. 2. On or about April 20, 1998, the plaintiff in the above litigation, Mr. Karn, filed a Declaration in which he describes a comparison he made between the RSAREF 2.0 encryption source code library included in Integrated TIS/DNSSEC source which he stated he found on the Internet at http://www.toad.com/~dnssec, with the RSAREF 2.0 encryption source code library from RSA Data Security Inc.'s FTP site, ftp://ftp.rsa.com/rsaref/. Pursuant to a classification request submitted by Lee Tien on behalf of Hugh Daniel on April 27, 1997, BXA had classified Integrated TIS/DNSSEC under the EAR as EAR99, which means that the item can be exported to most countries of the world without having to obtain a validated export license from BXA./1 /1 Normally, information concerning classification requests is not made publicly available in order to protect the confidentiality of exporters, pursuant to section 12(c) of the Export Administration Act of 1979, as amended (50 U.S.C. app Section 2412(c)). In this instance, however, the exporter has made this information public. Attached hereto is a copy of the letter submitted to BXA by Mr. Tien, as obtained from http://www.toad.com. 3. Mr. Karn stated that the contents of both programs were identical and that the RSAREF 2.0 directory contained within the Integrated TIS/DNSSEC program included C-language source code files for the US Data Encryption Standard (DES) and the RSA algorithm, a "public key" cryptographic function designed for both authentication and confidentiality. Mr. Karn also stated that the RSAREF 2.0 DES code supports both "single" and "triple" (3DES) modes. Mr. Karn then compared the DES/3DES codes in RSAREF with the DES/3DES codes that were included on the Applied Cryptography source code disk that is at issue in this case and which BXA had classified as being on the Commerce Control List (CCL) (15 C.F.R. Part 774) and classified as Export Control Classification Number (ECCN) 5D002. Items that are controlled under ECCN 5D002 on the CCL require a validated export license before they can be exported to all countries, except Canada. While Mr. Karn acknowledged that those codes were not identical, he asserted that the DES/3DES code in RSAREF was derived from the code in Applied Cryptography, or both were derived from a common ancestry. Mr. Karn stated that there were no meaningful distinctions between the two versions of DES that could warrant classifying the two products differently. 4. A copy of Mr. Karn's declaration was provided to my office for technical review. In conducting that review, BXA again reviewed the 1997 request for a classification for Integrated DNSSEC submitted by Mr. Tien. That classification request described the software as authentication software that would be useful for improving the security of the Internet's Domain Name System. The request noted that "Integrated DNSSEC is authentication software used only to authenticate users or messages and the encryption capability of the software is limited to encryption of data needed for authentication . . . ." As Mr. Tien stated in his letter seeking a classification from BXA, "[Integrated DNSSEC] uses [the source code for the] RSAREF [crypto toolkit] . . . as an authentication tool. It does not use any of RSAREF's cryptographic functionality other than in service of authentication." Under the EAR, data authentication equipment and software that calculates a Message Authentication Code or similar result to ensure that no alteration of text has taken place, or to authenticate users, but does not allow for encryption of data, text, or media other than that needed for authentication does not require an export license under ECCN 5A002 (the ECCN for encryption hardware) or ECCN 5D002. See 15 C.F.R. Part 774, ECCNs 5A002 and 5D002. Thus, software that is limited to performing a data authentication function is expressly excluded from ECCN 5D002. Accordingly, based on what BXA understood the application of the product to be, that the RSAREF toolkit was only used in Integrated DNSSEC to authenticate users or messages, BXA advised Mr. Tien that his client's product was classified under the EAR as EAR99. 5. As stated above, based on Mr. Karn's declaration, BXA undertook a review of the classification provided to Mr. Tien in 1997 to ensure that it was correct. Based on that review, BXA determined that, while the RSAREF is used in the Integrated DNSSEC to authenticate users or messages, the software also included the source code for RSAREF. That source code can be used to encrypt files for authentication or, with minimal amount of programming effort, to encrypt data for confidentiality purposes. Indeed, RSA Data Security, Inc., the developer of RSAREF, specifically notes in its webpage that the toolkit is subject to export restrictions. Based on a review of the software referred to in Mr. Tien's classification request,/2 BXA has notified Mr. Tien that the classification for Integrated TIS/DNSSEC source code is revised and that export of the Integrated DNSSEC program will require an export license from BXA. BXA has also notified Mr. Tien that the present posting of the Integrated DNSSEC source code on the Internet without taking the precautions set forth in Section 734.2(b)(9) of the EAR constitutes an unauthorized export from the United States. As a result of this revision to the classification provided to Mr. Tien, Integrated DNSSEC source code is now subject to the same export control requirements as Mr. Karn's diskette. /2 BXA obtained a copy of the software from http://www.toad.com. 6. Since January 1, 1997, BXA processed approximately 1000 classification requests for encryption items; during the same period, we processed approximately 150 requests for advisory opinions for encryption items. Occasionally, it is necessary for BXA to reassess a prior determination and so advise the exporter when information comes to our attention that the original classification may be in error. In this instance, the classification request for Integrated DNSSEC stressed at length that the program was limited to authentication purposes only, which is exempt from licensing requirements under the EAR. BXA sought to apply the policy set forth in its regulations to the two separate classifications at issue, the Karn diskette and the Integrated DNSSEC program, as we initially understood those programs. As indicated, the Integrated DNSSEC program was understood to fall within an exemption to export licensing requirements, and that was how the EAR were initially applied to the software by BXA. BXA applied the EAR to Karn's request accordingly, classifying it under ECCN 5D002. I declare under penalty of perjury that the foregoing is true and correct. DATE: June 19, 1998 /s/ James A. Lewis