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New Australian export regulations
by pgut001＠cs.auckland.ac.nz 17 Dec '03

17 Dec '03

Australia's new export control regulations have just been posted to the net, you can get them from http://www.adfa.oz.au/DOD/al/iic/excontrl/excohome.htm (they're all Word 6.0 documents, I've been reading them with a binary file browser - blech). What makes them interesting is that most of the text is word for word identical to the Canadian regulations (which is sensible, since the Canadian ones are clear and easy to follow, unlike the US "We'll let you know when you've broken the law" FUD regulations). The only thing which is different is the section numbering, the mapping from Canadian to Australian section numbers appears to be: 10xy.y.z -> xY00?.Y.Z where y -> Y == 1 -> A, 2 -> B, etc and z -> Z == A -> 1, 2 -> B, etc, so that Canadian 1151.1.c becomes Australian 5A002.a.3 (this doesn't work in all cases, if there's no .n suffix on the Australian number then the .n part from the Canadian number becomes part of the main Australian number, eg 1071.5 -> 7A005. The text may not be taken straight from the Canadian one because some of the spelling mistakes in the Canadian one aren't present in the Austrlian one, or maybe it was prepared from a later version which had been spelling checked. For crypto software, you want cat_5.doc, equivalent to section 1150 of the Canadian regulations. Anyway, here's the good bit, in sou.doc, "GENERAL TECHNOLOGY NOTE (PART 1 - MUNITIONS LIST)" >3. Controls do not apply to "technology" "in the public domain", to "basic > scientific research" or to the minimum necessary information for patent > applications. Again, this is identical to the Canadian regulations. Since the Canadian government has already ruled that a whole variety of crypto software is exportable under this exception, it means that the same stuff (and equivalent software from Australia) should also be exportable, or at least that you've got a very good case for arguing with the Australian government if they decide it's not exportable. Then in definits.doc we again have the Canadian text: >"In the public domain" (GTN NTN GSN), as it applies herein, means >"technology" or "software" which has been made available without restrictions >upon its further dissemination (copyright restrictions do not remove >"technology" or "software" from being "in the public domain"). It's nice to have this stuff laid out at last, because it finally takes the Australian crypto controls out of a gray area and defines them so that stuff like SSLeay and my own cryptlib aren't restricted. Incidentally, there's also the cute: >1. The export of "technology" which is "required" for the "development", > "production" or "use" of items controlled in the Munitions List is > controlled according to the provisions in the Munitions List entries. > This "technology" remains under control even when applicable to any > uncontrolled item. This covers virtually any software development tool, and any kind of computer hardware, as well as natural neural networks and personal digital extensions (of the kind designed for keyboard data entry). I wonder if we'll see the regulations retroactively changed when someone in Canberra realizes what they've copied from the Canadian regs :-). Peter.

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Reflections on the Bernstein ruling
by Greg Broiles 17 Dec '03

17 Dec '03

(Please keep in mind that I'm not a lawyer yet, and that my comments are intended only as the reflections of an amateur and are intended as discussion fodder, not legal advice.) Folks seem to be very excited about Judge Patel's ruling in the Bernstein case - and with good reason. It was, for example, a first-page above-the-fold item in both of the Bay Area's legal newspapers today. Unfortunately, most of the media reports have done a poor job of interpreting the ruling, and it's easy to draw bad conclusions from erratic news reports about the case. The decision is available online <http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/961206.decision> thanks to the folks at EFF. I thought list members might appreciate a summary of the decision and its potential effects. 1. What the ruling said In brief, Judge Patel ruled that Category XIII(b) (the category which refers to cryptographic equipment/software) is unconstitutional because it functions as a prior restraint upon speech without providing important procedural safeguards which are required when a prior restraint scheme is put into place. She ruled that the "technical data" provision of the ITAR is also unconstitutional when it refers to technical data about Category XIII(b) items because of the lack of procedural safeguards. Mopping up other points raised by the suit, Judge Patel ruled that the term "defense article" as defined in 22 CFR 120.6 should be read to elide the phrase "or technical data"; and that when interpreted that way, the terms "defense article", "defense service", and "technical data" are not unconstitutionally vague. She also ruled that the term "export" is not unconstitutionally vague, and writes (in 'dicta', which is legalese for "offhand comment", e.g., without precedential value but interesting as a hint re what's going on in the judge's mind) that placing software on an "Internet site" which can be accessed from a foreign country is an export for ITAR purposes. She also ruled that the "fundamental research in science and engineering" (120.11(8)) and "general scientific, mathematical, or engineering principles" (120.10(5)) exceptions to the definition of "technical data" are void because they are too vague. As far as I can tell, they are thus no longer available to potential ITAR defendants. 2. What the ruling didn't say Judge Patel declined to address the merits of two of Bernstein's arguments: that cryptographic software is independently worthy of First Amendment protection as a tool which enables confidential speech and privacy, and that the ITAR scheme violates the Administrative Procedure Act. She also refused to grant Bernstein a preliminary injunction which would have prohibited the US Government from prosecuting him for teaching his class this spring, because her ruling means that his proposed activities are not (for now) illegal. The opinion also narrowly fails to say whether or not Category XIII(b) is content-based or content-neutral; but reaches its conclusion by pointing out that such a determination isn't necessary, because even if XIII(b) is content-neutral, it is still unconstitutional. (* My reading of the opinion diverges from the EFF's, as reported in their 12/17 press release, on this point. I think my interpretation is correct. YMMV.) 3. What the ruling means Some messages that I've seen have suggested that her ruling means that the ITAR does not apply to crypto of any kind; or that crypto can now be exported in, variously, the Ninth Circuit, or Northern California, or Berkeley. Strictly speaking, Judge Patel's ruling is not binding precedent in any court. The doctrine of "stare decisis", which says that courts should not disturb existing precedent, suggests that other district courts in the Northern District of California will follow Judge Patel's ruling, at least until the Ninth Circuit addresses the issue (in this case or a different one). But "stare decisis" is a policy statement, not law; and, as the decision in _Karn v. Dept of State_ makes clear (by ruling that the First Amendment does not prevent applying Category XIII(b) to source code), district courts around the country are free to disagree with each other and issue contradictory or incompatible opinions. (I'm interested in any analysis which would suggest that her ruling is binding on the ND CA courts for reasons other than stare decisis; I'm not aware of other grounds, but I don't know everything, either. Comments?) Further, Judge Patel's ruling yesterday is dependent upon her earlier ruling which held that source code is speech for First Amendment purposes. That ruling has not yet been reviewed at the appellate level, and is not uncontroversial nor universally accepted. If another court disagrees with that ruling, Judge Patel's otherwise convincing reasoning in this case (which says that the lack of procedural safeguards for this prior-restraint scheme is unconstitutional) is irrelevant - because without speech, the First Amendment (and its hostility to prior restraint) isn't applicable. It's also significant because her earlier ruling said that source code is speech - and her reasoning for reaching that result does not apply to object code or executables. It's also unclear that Judge Patel's ruling is enough to make export of crypto source legal by people/organizations located even in the Northern District of CA. Venue is proper, in an ITAR case, in any jurisdiction which the defense articles have moved through. (18 USC 3237(a); _US v. Durrani_ 659 F.Supp 1177, 1182 (D. Conn, 1987); an easy analogy is to the _US v. Thomas_ "Amateur Action" case, where Tennessee venue was proper for prosecution of California defendants who sent porn into Tennessee.) So it's at least arguable that the feds could simply bring an ITAR prosecution in another district, if exported crypto flowed through that district. (But I don't think they can do so against Dan Bernstein because of "res judicata", a doctrine which says that once two parties have fully litigated an issue, they cannot come back to the same court - or a different one - and ask to relitigate the same issue.) So while the ruling has considerable historical, cultural, and symbolic significance, it's dangerous to assume that it means that export restrictions on crypto are dead. -- Greg Broiles | US crypto export control policy in a nutshell: gbroiles(a)netbox.com | http://www.io.com/~gbroiles | Export jobs, not crypto. |

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Re: Dale defends free society from the NSApunks
by nobody＠huge.cajones.com 17 Dec '03

17 Dec '03

:Date: Fri, 20 Dec 1996 14:10:11 -0800 :From: Rich Graves <rcgraves(a)disposable.com> :Stop bashing Dale, you ADL/CFR/NSA thought police, you. I can recognize sarcasm! You're on the list! Yes, THE list! Yours from NSA.

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Re: Credentials without Identity--Race Bits
by nobody＠huge.cajones.com 17 Dec '03

17 Dec '03

:From: dlv(a)bwalk.dm.com (Dr.Dimitri Vulis KOTM) :Why is the fascist United State of America considered a "civilized :country"? It lets in the refuse of the earth to offer them the opportunity of a better life? With little guarantee thay will repay the offer?

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Re: Credentials without Identity--Race Bits
by Three Blind Mice 17 Dec '03

17 Dec '03

On Fri, 20 Dec 1996, Vangelis wrote: > Bill Stewart wrote: > > I've heard that in less civilized parts of the world you're actually > > required to carry government-issued ID cards to walk down the street > > or fly on airplanes. > > Umm.. tried to get on a flight without having ID lately? Doesn't work - > against policy. Anti-terrorism policy and all.. it's for your own > safety, of course. But my dear Vangelis, that's exactly what Bill is talking about. --3bmice

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Re: Ebonics
by Mark Rosen 17 Dec '03

17 Dec '03

> > There are several problems with your argument: > > * You are making glaring generalizations regarding all members of an > > ethnic body; you don't seem to realize that intellect is based not on color > > or how you talk but on your brain (which has the same color and other basic > > properties in all humans, I believe) > > That would be your generalization. Nowhere did anyone ever say that _all_ > black people speak "Ebonics". I don't see why someone should hire someone if > they can't even understand what that person is saying. Besides, I would > suspect that a reasonably intelligent person would know how to speak correct > English or at least make an attempt to do so. Especially in the computer field, language is irrelevant; as long as someone can "speak" C++ or HTML, they're fine. > > * You are completely forgetting the other "non-English" group in America; > > the so-called White Trash or heavy Southern accents, which are violate just > > as many prissy and stuck up rules of grammar as Ebonics > > No mention was made of "White Trash". You're drawing an invalid conclusion. Yes, though your same discrimination rules apply to "White Trash." I want to see if your language discrimination applies only to black Ebonics or to the white Southern twang also. > > I also think that you are forgetting about the human aspect of your > > discrimination. For a second, put yourself in the place of a really smart > > black guy applying for a job at Intel. He is overqualified for the job. You > > There is a logical correlation between intelligence and being able to follow > English grammatical rules. Not really. America is an incredibly diverse place. There are parts of the country where correct English-speaking people are minorities; if you've grown up in one of these places, you'll speak the native dialect no matter how smart or stupid your are. > Crypto will allow people to actively discriminate against whomever they wish. > It will also allow those who would be discriminated against to protect > information about themselves to prevent discrimination. I don't support > discrimination based on race, but language is a completely different matter. Spoken language, which is what you're discriminating against is vastly different from typed language. Everyone types pretty much the same way but everyone speaks differently. People who speak in Ebonics or with a Southern twang often know the rules of grammar, as expressed in writing, but they do not speak "correctly" because they are not accustomed to doing so. > P.S. Spelling and grammar flames will be ignored. What?! How can you say this? According to your position, it is my right to flame you because, as a better grammarian and orthographer, I am more intelligent than you and you should know this. In fact, your viewpoint can be extrapolated to say that anyone who make a grammar or spelling mistake in any message should be thrown off the list becuase they are not intelligent.

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Re: Ebonics
by Mark Rosen 17 Dec '03

17 Dec '03

> Yeah, Matt, in a free society I wouldn't have to "speak Ebonics." > > (Personally, I interviewed several folks while I was at Intel who could not > speak standard English. I recommended against their hiring, and they in > fact did not get invites to be interviewed at the main facilities. So much > for their jive talk habits.) > > Understand, I have nothing against the colored people speaking "Ebonics" to > each other, or to anyone who'll listen. But I don't have to deal with this > nonsense, nor do I have to hire them. > > (Until the People's Republic of Political Correctness demands that I > "justify" why not speaking standard English is a "valid job requirement," > and refuses to take my "Because I say it is" as a valid answer. Not > surprisingly, the Clintonistas have decided to enter the Proposition 209 > challenge on the side of the pro-discrimination side.) > > If I were designing a genocidal program to destroy the colored race, I > would be pushing for Ebonics, for encouraging coloreds to study "Human > Potential" and "African History" instead of math, science, and engineering, > and pushing for hiring quotas. > There are several problems with your argument: * You are making glaring generalizations regarding all members of an ethnic body; you don't seem to realize that intellect is based not on color or how you talk but on your brain (which has the same color and other basic properties in all humans, I believe) * You are completely forgetting the other "non-English" group in America; the so-called White Trash or heavy Southern accents, which are violate just as many prissy and stuck up rules of grammar as Ebonics * You don't have to speak ebonics. You also don't have to speak with a Southern twang (or whatever the politically correct name for that is) I also think that you are forgetting about the human aspect of your discrimination. For a second, put yourself in the place of a really smart black guy applying for a job at Intel. He is overqualified for the job. You turn him down. Have you ever wondered what it does to a person to be turned down not on the basis of their moral character or intellect but by their skin? For someone to be told that they are stupid and are not competent to do this job? You don't realize that you are crushing _human_ lives, people who have feelings. If you would just put yourself in their place, you would realize the hurt that your are inflicting. Out of curiousity, do you refuse from hiring people with Southern Accents? Or people who have heavy "asian" accents? I'm very surprised that a smart person like you, who believes in the power of strong cryptography, one of the greatest equalizing forces in the world, actively discriminates against other people who don't look or talk like you. Mark Rosen FireSoft - http://www.geocities.com/SiliconValley/Pines/2690 Mark Eats AOL - http://www.geocities.com/TimesSquare/6660

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Re: Ebonics
by Matthew J. Miszewski 17 Dec '03

17 Dec '03

-----BEGIN PGP SIGNED MESSAGE----- At 03:02 PM 12/21/96 -0500, Mark M. wrote: [snip] >There is a logical correlation between intelligence and being able to follow >English grammatical rules. Why is it that personal freedom, sometimes expressed by choice of dialect or language, seemingly has such arbitrary limits? Many on the list complain that they are subject to too many rules, and yet, seem to chime in on multi-linugual issues in this way. Crypto angle, here? Much of Ebonics has been based upon a need or desire to communicate in a private way. "5-0" was initiated as a way to communicate the presence of a police officer. Surely, we are not arguing against the development of a low-level way to scramble language. Or in fact, are you arguing that attempts to curtail the police should *not* be encouraged? This seems odd coming from some members of the list (Collapse of Governments and all) ;-). Matt -----BEGIN PGP SIGNATURE----- Version: 2.6.2 iQCVAwUBMrx7eLpijqL8wiT1AQGfmAQAnwxX/ks/LmKIrvSZi1q7PfjlU3n+/rob 05JSMNl8Qg5sj7Xsd/mdxvVwIUWd3mzz3PCyr1CKSDNVsE9miSYwnIoWCRkxOzle dJUdEAACFX5csk/rpGMWTBpxyucmPfSugt9o6bikVWAP7Gh6YSIJobvQh6KvLMEQ XhZErmf1vHk= =azuR -----END PGP SIGNATURE-----

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RE: some clarification of jurisdiction in Berstein (long)
by blanc 17 Dec '03

17 Dec '03

From: attila The DOJ is not interested in either justice or the Bill of Rights. Federal attorneys are striving for high conviction rates, like Vietnam body counts --and are enforcing the policies of the administration, not the courts, the constitution, or the people. ........................................................... (I just read this message, even though Attila posted it this past Thursday.) I wanted to comment that it was a quite interesting post, because it deals with elements of courts and law which really baffle me - all the talk about which District Court stated this, and whether this will apply only in Northern California, and whether Judge Patel's ruling will be observed elsewhere or appealed to a higher court - I think to myself, sheesh, this is like being in a maze and trying to find the way out: If you go through this corridor, will you be on the straight path out, or is there perhaps a dead end around to the left of that edge up ahead, so maybe you should instead try going around that wall on the right? And how do you know how close you are to the exit? How do you know you aren't on a circuitous path going around & around, going nowhere? There are so many detailed decisions, so many objections, such meticulous, scrupulous study of every word & potential meaning therein, and all the judicious players appear so knowledgeable of what is or could not be valid, what is or could not be moral and therefore supportable, of which decision made by which judge on what year relating to what number on a document this all relates back to. It appears that there is a reason for the extreme concern for propriety and the extreme complexity in the assessment of it in a courtroom, in courtroom after level of courtroom. It appears that judges and lawyers and courts are deeply concerned about life proceeding in a moral way, and that they would play the role of catching it from degrading into corruption, affecting the quality of life in the US. Yet if the individual whose actions are in questions goes to jail, the atmosphere of intelligence or mental ability suddenly disappears, the delicacy towards morality and quality of behavior cuts off and there is no similar meticulous examination the institution wherein they are incarcerated, to continue ensuring that all processes there are aligned in the direction of goodness. Therefore what was it all for? If the quality of Truth and Morality is being saved from corruption by these Judges of Law, then why is one person's decision valid only in North California, but not as soon as one travels south (what's the boundary line for "North" California)? Or why does it "hold" in that state, but not anywhere else on the continent? I always think in the same terms used in the Constitution - about human nature and other such categories of thought. Not about where that human nature happens to be residing at any particular time, but what it is per se, and what is or is not right for it per se, regardless of whether it is in North or South Rhode Island. In terms of governmental roles, I'm aghast that they relate their judgements back to each other rather than back to principles. Because this means that, in the end, we are subordinate to the reasoning of some appointed individual, and subject to the lucidity of their mind at the particular moment that we come to their attention, as during a dispute regarding the publication of source code. We could never refer back to valid principles of thought or the Laws of Nature in determing what is right or what not to do, because overriding those considerations would be the calculations of some public overseer. I realize that not all lawyers & judges are this way, but it is still very unsettling to realize just how superficial is the 'honor' which accrues to them. Thanks for the elaboration on this, Attila. .. Blanc

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Re: Credentials without Identity--Race Bits
by jim bell 17 Dec '03

17 Dec '03

At 10:50 PM 12/20/96 -0800, Bill Stewart wrote: >At least they weren't doing most of this paranoia when I visited my >sister earlier this summer, bringing a couple pounds of Silly Putty >in my luggage as presents for her kids, packed near the alarm clock.... ># Thanks; Bill For years, Radio Shack has sold an indoor/outdoor thermometer with max/min temperature function. Going on a long trip and carrying a 5-pound loaf of cheese? Stick the outdoor thermo pickup in the cheese before you depart, to ensure that it wasn't exposed to damaging temperature excursions! I'm sure this looks wonderful on an X-ray. Jim Bell jimbell(a)pacifier.com

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