On Tue, 7 Nov 1995 hallam@w3.org wrote:
I would admit that a court might do this in an effort to hold the statute constitutional, but a court might also hold the regulations unconstitutional because they are overbroad. Remember, the first
Technically, this is holding the regulations ultra vires, not unconsitutional; the difference matters.
I thought Peter was arguing that the separation of powers would be affected? Surely this would be a constitutional question?
Yes, that's what he said; I don't agree.
On the strict ultra-vires question and enforcement on non US citizens may I sugest two hypotheticals?
Hyptotheical A:
I develop a crypoto system in Geneva and pass the source code to my co-worker. Neither of us have export certificates.
No problem if neither of you are US persons (citizen/green card holder)
Hypothetical B:
I set up an anonymous FTP site to recieve PGP from abroad. It arrives and I hand it over to Fred who has agreed to distribute any material.
No problem if you and fred are non-US persons abroad. Big problem if Fred is in the US...
It seems to me that in Hypothetical B I am certainly acting in a manner which a US court might consider to be something the US government might seek to prevent. Effectively I would be trafficing. The fact that I only hand the goods over to non-US citizens would appear to be irrelevant.
No, even our government doesn't seek to regulate crypto transfers between two foreign persons living outside the US! (It might attempt to get a foreign government to do something, but that's different.) A. Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax) Associate Professor of Law | U. Miami School of Law | froomkin@law.miami.edu P.O. Box 248087 | http://www.law.miami.edu/~froomkin Coral Gables, FL 33124 USA | It's warm here.