In U.S. v Posey, 864 F2d 1487, the defendant was convicted of violating the Comprehensive Anti-Apartheid Act ("CAAA") and the Arms Export Control Act ("AECA") by sending design documents relating to the C-130 aircraft to South Africa. Posey obtained these documents from the U.S. government via the Freedom of Information Act. The U.S. government agreed that these documents were technically public domain within the meaning of the ITAR's. However, the CAAA, which applies only to exports to South Africa, does not contain the "public domain" exemption that the AECA (which applies to exports in general) does. The recent grand jury action regarding PGP appears to involve possible violations of the AECA. Posey appealed on several grounds, one of which was that these Acts violated his first amendment rights, since the information was, after all, freely available. The court rejected this argument, with a lengthy (and, to my mind, somewhat confused) discussion, which is worth repeating: VII. FIRST AMENDMENT Appellant's final argument is that the First Amendment bars the government from restricting the export of information that is already available to the public. He insists that the data he sent abroad was available under the Freedom of Information Act, and therefore could be legally obtained by virtually everyone in the world. He contends that the First Amendment prohibits the application of the AECA and CAAA to the export of such publicly available information. Our Court has already considered and rejected this argument. In United States v. Edler Industries, 579 F2d 516 (9th Cir. 1978), we rejected an essentially identical challenge to the predecessor of the AECA. The defendant was convicted of exporting certain manufacturing designs that were on the Munitions List but were not classified. He challenged his conviction on First Amendment grounds, arguing that the government could not constitutionally prohibit the export of techno- logical data that was widely distributed within the United States. In rejecting that claim, we explained that even assuming that the First Amendment offers some protection to the dissemination of technical data, the government has a strong interest in regulating the export of military information: The federal government undeniably possesses the power to regulate the international arms traffic.... As a necessary incident to the power to control arms export, the President is empowered to control the flow of information concerning the production and use of arms. The authority to regulate arms traffic would be of negligible practical value if it encompassed only the exportation of particular military equipment but not the exportation of blueprints specifying the construction of the very same equipment. 579 F2d at 520. We accordingly concluded that the government could permissibly restrict the flow abroad of data included in the Munitions List. 579 F2d at 521. Finally, we held that the government's power to issue such restrictions was not affected by the domestic availability of the regulated data: Given the unquestionable legitimacy of the national interest in restricting the dissemination of military information, the claim of public availability in the United States is not a defense recognized by the Constitution. 579 F2d at 522. Appellant attempts to distinguish Edler from the present case by pointing out that the exported data in Edler was "cutting edge" technology and was not widely used in this country. [Citation]. Whether or not this was factually true of the technology at issue in Edler, however, the Edler decision clearly assumed for purposes of its decision that the material was extensively available in the United States. See 579 F2d at 518, 522. Moreover, we believe Edler should not be read as permitting the govern- ment to restrict the export of only that information which is not widely available domestically. Under appellant's reading of Edler, if the government wished to prevent technical data from being sent to foreign powers, it would be required to suppress the information alto- gether, at home as well as abroad. This outcome would blur the fact that national security concerns may be more sharply implicated by the export abroad of military data than by the domestic disclosure of such data. Technical data that is relatively harmless and even socially val- uable when available domestically may, when sent abroad, pose unique threats to national security. It would hardly serve First Amendment values to compel the government to purge the public libraries of every scrap of data whose export abroad it deemed for security reasons necessary to prohibit. We conclude that appellant's conviction does not violate the First Amendment. (Hal speaking again here.) The thing I find somewhat ironic about this decision is this last paragraph. The court is saying that if the First Amendment implied that domestically available information could be exported, then the government might have to restrict domestically available information. But, this ignores the fact that the AECA already contains an explicit exemption for public domain information. So, the court is going to some length in this last paragraph to consider an argument which is mooted by the public domain exemption in the AECA. And in fact, as we have seen, at least one government official is daring to argue that this provision of the AECA does in fact give the U.S. government the power to keep Munitions List information out of public libraries! In any case, this decision and the earlier one it quotes both represent rejections by the 9th circuit appellate court (which includes California, where the grand jury investigations are taking place) of the argument that the ITARs infringe on First Amendment rights. This will make it more difficult to use the First Amendment defense in any new charges of arms export violations. Hal Finney hfinney@shell.portal.com