[They appear to be trying to transfer all the export controls from the State Dept to the Commerce Dept -- including all the unconstitutional and heavy-handed parts. -- John] Date: Wed, 25 Sep 1996 11:34:23 -0400 From: <djw@cdt.org> (Daniel J. Weitzner) Memorandum To: Interested Parties Re: Proposed Amendments to Preclude Judicial Review in the Export Administration Act of 1996 (H.R. 361) Date: September 25, 1996 Failed U.S. encryption export controls continue to threaten Internet security, individual privacy, and the competitiveness of U.S. industry. Proposed amendments to H.R. 361, The Omnibus Export Administration Act of 1996 (see attached), would make this problem worse by preventing judicial review of Commerce Department export control decisions, and should be defeated. These Amendments: * Would further entrench a failed U.S. encryption policy * Would provide extraordinary relief that is unjustified, and would shift the balance of power in the ongoing public debate over Internet security. * Will prevent judicial review of a broad area of public policy affecting the First and Fourth Amendment rights of Americans. * Are inappropriate legislative meddling in ongoing controversies * Are unnecessary as the EAA already contains strict judicial review provisions. On balance, the Amendments would shelter the highly sensitive area of Internet security from much-needed judicial scrutiny . The Amendments are inappropriate, unjustified, and should not be approved. The Amendments entrench a failed U.S. encryption policy -- Administration export regulation of encryption keep U.S. computer users from protecting their privacy online and damage the competitiveness of U.S. industry. Three active cases in Federal Court are challenging these export controls. Three bills have been proposed in this session of Congress with bipartisan support to address what many believe to be the inappropriate application of export controls to encryption exports. The Amendments would further entrench these controversial regulations by sheltering them from much-needed judicial scrutiny. The Amendments provide extraordinary, unjustified relief -- The Amendments would preclude all judicial review under the Administrative Procedure Act, including challenges to arbitrary and capricious rule-making or improper statutory interpretation. They would extend the already limited judicial review provisions in the original EAA and H.R.361 to preclude nearly all substantive review. Congress has made no findings that would suggest that such unusual relief is warranted. Typically, relief from judicial review might be granted in areas where excessive or inappropriate litigation is feared in areas that Congress feels are well-settled. Such is not the case here. The problem with encryption export controls has not been too much litigation. The Amendments prevent judicial review of decisions that implicate First, Fourth, and Fifth Amendment rights -- Export controls have been the Administration's exclusive vehicle for the its key escrow encryption proposals -- which have a grave impact on American's First, Fourth, and Fifth amendment right. The Amendments would thus preclude judicial review in an area broadly affecting the rights of individuals and the growth of a new medium. The Amendments will likely interfere with important cases and controversies -- These Amendments would raise a serious impediment to those seeking judicial relief from what many believe to be unfair encryption export control policies. Judicial review provisions in the EAA and the Arms Export Control Act (AECA) were the basis for a federal judge's recent dismissal of a challenge to the encryption export controls. The EAA provisions will soon take on added significance as it is widely believed that the Administration will shift jurisdiction over encryption export controls from the State Department to the Commerce Department in the near future. The Amendments are unnecessary -- H.R. 361 as passed by the House already contains significant judicial review limitations. The bill already provides unusual constraints -- on both subject matter and venue -- for challenges to Commerce decision-making under the Act. There is little to indicate that the further extraordinary relief of these Amendments is required. * * * * * Encryption export controls represent an area where it is widely believed that the Administration is abusing its discretion in order to use powerful export regulations to influence the domestic market for and use of important technologies. Without recourse in the Executive Branch -- or in Congress this session -- concerned parties have been forced to turn to the courts. It is in just such a critical area where parties are most in need of judicial review. The Amendments suggested would serve to deny individuals and companies their much-needed day in court, have not been justified, and should not be approved. For more information, please contact: Daniel Weitzner, Deputy Director <djw@cdt.org> Alan Davidson, Staff Counsel <abd@cdt.org> Center for Democracy and Technology (202) 637-9800 Amendments to The Omnibus Export Administration Act of 1996 (H.R. 361) 1. Amendment to Section 112 (Administrative and Judicial Review) Text: On page 125, at line 17 in Section 112, insert: "The provisions of this section shall constitute the exclusive basis for judicial review of any agency action taken pursuant to this title and the regulations promulgated thereunder." On page 126, at line 1 in Section 112(a)(2), insert "only" between "reviewed" and "by appeal". On page 126, at line 3 in Section 112(a)(2), insert "and only" between "Circuit," and "to the extent". On page 126, at line 6 in Section 112(a)(2)(A), strike (A) and replace as follows: "(A) regulations fail to provide for procedures required by this title;". On page 126, at line 12 in Section 112(a)(2)(B), insert "procedural requirements of" between "violates" and "this title;". On page 127, at line 5 in Section 112(a)(2)(H), insert "procedural" between "with the" and "requirements". On page 127, at line 7, add a new paragraph (3) to Section 112(a) as follows: "Preclusion of Review. -- Substantive decisions of the Secretary and other officials on (i) whether to impose, expand, or extend export controls on any commodity or technology, (ii) whether and how to revise the Commodity Control Index, (iii) whether and under what conditions to grant, deny, or modify any export license, and (iv) any other questions of law or fact under this title (except as otherwise provided in subsections (b)-(d) of this section), shall be final and conclusive and no court shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise." ============================================================================ Daniel J. Weitzner, Deputy Director <djw@cdt.org> Center for Democracy and Technology 202.637.9800 (v) 1634 Eye St., NW Suite 1100 202-637.0968 (f) Washington, DC 20006 http://www.cdt.org/ * PROTECT THE INTERNET AND THE FUTURE OF FREE SPEECH IN THE INFORMATION AGE * Join the legal challenge against the Communications Decency Act! For More Information, Visit the CIEC Web Page http://www.cdt.org/ciec/ or email <ciec-info@cdt.org>