Adam Shostack wrote:
Peter D. Junger wrote: | That has always been the position of the Department of Defense Trade | Controls with respect to the ITAR, the only difference is that now | it is going to be in writing.
My understanding is that they choose not to continue prosecuting Phil for putting the code up for FTP. Thus, this is a change. Or did Phil not put the code up for FTP?
What was never certain in Phil's case, I believe, is how the code got out of the US. Whether it was deliberately sent outside the US by someone, or just made available on a US site which was accessible from outside the US. The TIA lawyer who wrote me about TR453 indicated that there has been legal dispute about whether mere placement of ITAR-regulated code on a US site, accessible from outside the US, means that the code has been exported by the person placing it there (as I did with the CAVE code on an AOL server in Virginia), or whether the export is done by an accessor who is usually not be subject to US law. The new regs intend to close that loophole, as Peter Junger states, and as the TIA lawyer also indicated, that is, to codify the illegality of putting such code on a site accessible from "outside" the US, or by a "non-US person" inside the US. Heretofore, regulation has been by jaw-boning (as the TIA lawyer jaw-boned me about copyright villation of the uncopyrighted TR453). This is the point about two definitions of geography in conflict -- physical and electronic -- and how state-oriented law is attempting to assert control of the cyber-dissolving national borders. Similar to the struggle over electronic dissolution of intellectual property. As a speaker noted in a recent Congressional crypto hearing: government- aggressive law of cyberspace aims to define a nation's borders well beyond physical territory. As similarly argued against allowing "non-US persons" to study regulated crypto in Professor Junger's class. As others have noted here, other loopholes of by electronic reality are being closed by the new regs, even if First Amendment transgression follows. But I'm not sure that the lawyers are not condemned to trail the leading edge of technology, as ever -- in crypto-munitions as in First Amendment and intellectual property betrayals, misrepresentations and rear guard actions. Reading the new crypto export regs and comparing them to earlier incarnations is instructive. Observe those insertions of bits and bytes of contortinate intellectual labor -- never quite able to get the legilation to fit all the looming permutations of technology -- unable, that is, to stitch the wounds of the stumbling, flailing superpower, unsure where the foe is located who is mortally undermining faith in the physical prowess of the keepers of the privileges. Those vaunted inside secrets of nuclear-munitioned cops don't sell so well these days when the donut-dippers cannot be sure how to distinguish insiders from outsiders, and whose really in control of the armaments keys of keys. Whole lot of shifting of alliances going on, from State to Commerce, or so I read in the quagmire regs.