Phil Karn writes:
Perry quoted part of the joint declaration of facts in my case and asked
Would this not mean that the government is estopped from ever again claiming that hash functions are export controlled under the ITAR?
Not according to them.
Yeah, I know not according to them. Thats not what counts. I'd like to know what a lawyer thinks. Once they have declared that something doesn't fit the munitions criteria I suspect they are estopped from ever claiming again that it is munitions -- basic legal principle. Sure, they can claim otherwise, but they aren't forbidden by law from asserting their power to make buildings levitate, either.
Furthermore, they repeatedly assert that under the power delegated to them by the President, they have the absolute power to add and delete items from the Munitions List and to make inexplicable, inconsistent and arbitrary rulings whenever they damn well feel like it, and no court can overrule them.
They can claim that they have the right to declare fingernail clippers to be munitions, but that certainly couldn't stand up in court.
So the bottom line is this: at the moment the ODTC will let you export hash functions as long as they don't encrypt data. They'll probably grant CJ requests to that effect. But they could change their minds at any time if they feel like it.
Isn't it wonderful to live under a government of laws, not of men?
Joy. Perry