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? 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. 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. 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. Defining the precise distinction between what is covered and what is not is difficult. It is easier to draw the boundaries broadly and let the courts decide what is clearly outside the scope. it is not necessarily in the governments interests to have sharply defined lines Phill