From: lmccarth@cs.umass.edu (L. McCarthy) Date: Thu, 13 Jul 1995 08:12:00 -0400 (EDT) Reply-To: cypherpunks@toad.com (Cypherpunks Mailing List) bal writes:
It's much worse than this. Look at the definition of "predicate act":
`(b) For purposes of this section, each act of distributing software is considered a separate predicate act. Each instance in which nonexportable software is accessed by a foreign government, an agent of a foreign government, a foreign national, or an agent of a foreign national, shall be considered as a separate predicate act.
Now, since the bill also makes 1030A violations "racketeering activities", all you need are two predicate acts and RICO comes into play.
In the subsection that explicitly mentions crypto, it says that it's unlawful to put (non-GAK) crypto on an open net, "regardless of whether such software has been designated non-exportable". If the phrase "nonexportable" means the same thing in the context of this subsection, then provision (b) would only seem to apply RICO to stuff that already falls under ITAR. What worries me is the first sentence: "each act of distributing software is considered a predicate act." It's not clear to me whether this applies to (a)(1) unlicensed software or (a)(2) encryption programs (or perhaps both). Notice that (a)(1) says "transfer" not "distribute". Perhaps the act of putting Alleged-RC4 on a FTP site is one act and mailing a copy to Cypherpunks is another act. That might be two distributions and thus two predicate acts. --bal