From: "Peter D. Junger" <junger@pdj2-ra.F-REMOTE.CWRU.Edu>
From the point of view of one who is concerned with first amendment rights rather than selling cryptographic software as a commodity, the really unfortunate part is that this provision authorizes export contols on ``software''. Now the Leahy bill does not define software, but there is a definition of lying around in the International Traffic in Arms Regulations (``ITAR'') that I fear Commerce might adopt---it may even be the language that the draftsmen of the Leahy bill had in mind. And this definition of ``software'' includes a great deal of material that cannot constitutionally be controlled. Here is that definition from the ITAR \S 121,8(f): ``Software includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems and support software for design, implementation, test, operation, diagnosis and repair.'' [...] Even if that definition is adopted, the fact remains that software is still nothing but information, and that it is the communication of information that is protectected by the first amendment to the United States constitution. (If you aren't convinced that software is protected by the first amendment, notice that software is copyrightable as a ``literary work''.) Note that the paradigmatic violation of the first amendment is a scheme under which the government requires publishers to obtain a license before publishing.
Are you familiar with the Posey case? That decision by the 9th district court (which oversees export cases) explicitly rejected the contention that restrictions on export of written materials violate the First Amendment. Although I am not a lawyer, I wrote some notes on this case at: <URL: http://www.portal.com/~hfinney/cryp_export2.html>. Below is an excerpt from that court decision in which they make it quite clear that the First Amendment doesn't apply. In this case, the item being exported was a technical manual obtained from the US government itself under the Freedom of Information Act. Surely this is even closer to what the framers of the constitution had in mind when they conceived of the First Amendment, yet the constitutionality of restrictions on its export has been upheld. So you should be aware that the status quo is that the restrictions you fear being legitimized by the Leahy bill are already in place. Here is part of the Posey decision [864 F2d 1487] (the AECA is the Arms Export Control Act, which is what currently forbids the export of encryption devices, and the CAAA is the Comprehensive Anti-Apartheid Act, which applied specifically to South Africa, where the materials in this case were sent): 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.