ITAR -> EAR; loss of First Amendment Rights.
Reading the proposed new rules, what disturbs me most deeply is the statement: - start quote - 16. Section 734.7 is amended by revising paragraph (b) to read as follows: 734.7 Published information and software. * * * * * (b) Software and information is published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction and distribution. See Supplement No. 1 to this part, Questions G(1) through G(3). Note that encryption software controlled under ECCN 5D002 for "EI" reasons on the Commerce Control List (refer to Supplement No. 1 to part 774 of the EAR) remain subject to the EAR even when publicly available. Accordingly, such encryption software in both source code and object code remains subject to the EAR even if published in a book or any other writing or media. - end quote - It appears that we will now have the unique situation that a book which contains cryptographic info or source code will be illegal to export or sell to a non-citizen, without getting export permission. I am not aware of any prior time when the government attempted to claim that printed material, freely available in bookstores and newsstands to US citizens, became contraband when sold or given to a non-citizen. Who's responsible for enforcing this? The vendor? The clerk at Barnes & Noble? The publisher? If the latter, how many publishers will take the risk of printing books with crypto information? Will Wiley pull "Applied Cryptography" from the shelves? This doesn't just chill free speech, it dunks it in liquid helium. It's difficult to think of clearer case of prior restraint. ----------------- Peter Trei trei@process.com Disclaimer: I am not speaking for my employer.
-----BEGIN PGP SIGNED MESSAGE----- In article <199612131951.LAA03511@toad.com>, Peter Trei <trei@process.com> wrote:
It appears that we will now have the unique situation that a book which contains cryptographic info or source code will be illegal to export or sell to a non-citizen, without getting export permission.
I am not aware of any prior time when the government attempted to claim that printed material, freely available in bookstores and newsstands to US citizens, became contraband when sold or given to a non-citizen.
Who's responsible for enforcing this? The vendor? The clerk at Barnes & Noble? The publisher? If the latter, how many publishers will take the risk of printing books with crypto information? Will Wiley pull "Applied Cryptography" from the shelves?
Part 744.9(c) of the draft regs: # (c) Definition of U.S. person. For purposes of this section, the term # U.S. person includes: # # (1) Any individual who is a citizen or permanent resident alien of # the United States; # # (2) Any juridical person organized under the laws of the United States # or any jurisdiction within the United States, including foreign # branches; and # # (3) Any person in the United States. So it would be legal to sell books to foreigners in the US, unless that would be "provid[ing] assistance to foreign persons" (744.9(a)). Funnily enough, "foreign person" isn't defined anywhere in http://jya.com/commerce.htm. Is it safe to assume it means "a person who is not a U.S. person, as defined in 744.9(c)"? If that is the case, then teaching crypto classes to foreigners in the US would be legal. The new regs don't seem to have the exception for "mere travel outside of the United States by a person whose personal knowledge includes technical data" (ITAR, 120.17(1)). Does that mean that such travel is now (or will shortly be, when the new regs are enacted) illegal? I find that hard to believe (but I also find that virus checkers and firewalls are being controlled hard to believe; hell, I find the whole crypto export policy hard to believe). - Ian "heading back to Canada..." -----BEGIN PGP SIGNATURE----- Version: 2.6.2 iQCVAwUBMrHY70ZRiTErSPb1AQE0VAP/Sa1+s9n5k9V0ybt+xgMqd+lWLRNwsCES y5tBaaU+BApEMrt96EPcvJe/YX5BwhFbKjxMaXjl5brtGe8J3UmgP04lBDlNfS4R XwVqagG8yjmya7e0+/b0//WmFEn+KJCcU7y9HNi/OB4j7aWyB/7lPvSG9rPt2sua 13oBHLnoZIQ= =j7sS -----END PGP SIGNATURE-----
"Peter Trei" writes: : It appears that we will now have the unique : situation that a book which contains cryptographic : info or source code will be illegal to export or : sell to a non-citizen, without getting export permission. : : I am not aware of any prior time when the government : attempted to claim that printed material, freely : available in bookstores and newsstands to US citizens, : became contraband when sold or given to a non-citizen. A literal reading of the ITAR's provisions relating to cryptography leads to exactly that result. And there have been strong suggestions that that is the intended result in some of the statements made by representatives of the State Department. If you are interested in this you might look into MIT's experiences when they published the book with the PGP source code. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH Internet: junger@pdj2-ra.f-remote.cwru.edu junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu
participants (3)
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iang＠cs.berkeley.edu -
Peter D. Junger -
Peter Trei