National Security Committee amendments to SAFE
Got a fax from Dellums' office this afternoon (finally!) with the amendments from the National Security committee to SAFE - this will be on the web at <http://www.parrhesia.com/safe-dellums.html>. --- AMENDMENTS TO H.R. 695 OFFERED BY MR. WELDON AND MR. DELLUMS Strike Section 3 and insert the following: SEC 3. EXPORTS OF ENCRYPTION. (a) EXPORT CONTROL OF ENCRYPTION PRODUCTS NOT CONTROLLED ON THE UNITED STATES MUNITIONS LIST. - The Secretary of Commerce, with the concurrence of the Secretary of Defense, shall have the authority to control the export of encryption products not controlled on the United States Munitions List. Decisions made by the Secretary of Commerce with the concurrence of the Secretary of Defense with respect to exports of encryption products under this section shall not be subject to judicial review. (b) LICENSE EXCEPTION FOR CERTAIN ENCRYPTION PRODUCTS - Encryption products with encryption strength equal to or less than the level identified in subsection (d) shall be eligible for export under a license exception after a 1-time review, if the encryption product being exported does not include features that would otherwise require licensing under applicable regulations, is not destined for countries, end-users, or end-uses that the Secretary of Commerce has determined by regulation, with the concurrence of the Secretary of Defense, are ineligible to receive such products, and is otherwise qualified for export. (c) ONE-TIME PRODUCT REVIEW - The Secretary of Commerce, with the concurrence of the Secretary of Defense, shall specify the information that must be submitted for the 1-time review referred to in subsection (b). (d) ELIGIBLE ENCRYPTION LEVELS - (1) INITIAL ELIGIBILITY LEVEL. - Not later than 30 days after the date of the enactment of this Act, the President shall notify the Congress of the maximum level of encryption strength that could be exported from the United States under license exception pursuant to this section without harm to the national security of the United States. Such level shall not become effective until 60 days after such notification. (2) ANNUAL REVIEW OF ELIGIBILITY LEVEL - Not later than 1 year after notifying the Congress of the maximum level of encryption strength under paragraph (1), and annually thereafter, the President shall notify the Congress of the maximum level of encryption strength that could be exported from the United States under license exception pursuant to this section without harm to the national security of the United States. Such level shall not become effective until 60 days after such notification. (3) CALCULATION OF 60-DAY PERIOD. - The 60-day period referred to in paragraphs (1) and (2) shall be computed by excluding - (A) the days on which either House is not in session because of an adjournment of more than 3 days to a day certain or an adjournment of the Congress sine die; and (B) each Saturday and Sunday, not excluded under subparagraph (A), when either House is not in session. (e) EXERCISE OF EXISTING AUTHORITIES. - The Secretary of Commerce and the Secretary of Defense may exercise the authorities they have under other provisions of law to carry out this section. Amend the title so as to read "A bill to amend title 18, United States Code, to affirm the rights of United States persons to use and sell encryption." [Note - title 18 is the criminal section of the US Code. SAFE's original title was "To amend title 18, United States Code, to affirm the rights of United States persons to use and sell encryption and to relax export controls on encryption."] -- Greg Broiles | US crypto export control policy in a nutshell: gbroiles@netbox.com | http://www.io.com/~gbroiles | Export jobs, not crypto.
-----BEGIN PGP SIGNED MESSAGE----- At 04:10 PM 9/15/97 -0700, Greg Broiles wrote:
AMENDMENTS TO H.R. 695 OFFERED BY MR. WELDON AND MR. DELLUMS
Strike Section 3 and insert the following:
SEC 3. EXPORTS OF ENCRYPTION. (a) EXPORT CONTROL OF ENCRYPTION PRODUCTS NOT CONTROLLED ON THE UNITED STATES MUNITIONS LIST. - The Secretary of Commerce, with the concurrence of the Secretary of Defense, shall have the authority to control the export of encryption products not controlled on the United States Munitions List. Decisions made by the Secretary of Commerce with the concurrence of the Secretary of Defense with respect to exports of encryption products under this section shall not be subject to judicial review.
I take it this last sentence is intended to kill Bernstein, Karn and Junger and any other cases we might try to bring. Correct? Is anyone starting a campaign to get congressfolks to kill both McCain-Kerrey and the amended SAFE? - Carl -----BEGIN PGP SIGNATURE----- Version: PGP for Personal Privacy 5.0 Charset: noconv iQCVAwUBNCA6TVQXJENzYr45AQH+rAP/QWTlMqs81NeabGOZQUAeBkB4F2n2Jydm EdsvGA9+mB3VfSzPfAYKMfgDgoZq4y9IcLwA4JZWo3HlwIwSMBOubu4xgsJiuYvz EjV51SnW/DBjS5SMH91fWyZzqv0RDJby4GHNVDk6od6WsRLABuQkXw6witnNuI4U 9G+MONRJ48o= =KNPm -----END PGP SIGNATURE----- +------------------------------------------------------------------+ |Carl M. Ellison cme@cybercash.com http://www.clark.net/pub/cme | |CyberCash, Inc. http://www.cybercash.com/ | |207 Grindall Street PGP 2.6.2: 61E2DE7FCB9D7984E9C8048BA63221A2 | |Baltimore MD 21230-4103 T:(410) 727-4288 F:(410)727-4293 | +------------------------------------------------------------------+
At 2:24 PM -0700 9/17/97, Ben Cox wrote:
Carl Ellison says:
Decisions made by the Secretary of Commerce with the concurrence of the Secretary of Defense with respect to exports of encryption products under this section shall not be subject to judicial review.
I take it this last sentence is intended to kill Bernstein, Karn and Junger and any other cases we might try to bring. Correct?
How could that possibly be binding? Anything the court system thinks is subject to judicial review is subject to judicial review.
To all responding to Carl's comments, we talked about this last week. It is clear that the law cannot preclude Supreme Court rule, of the law itself. It is also likely that any particular target of the surveillance could challenge the basic constitutionality of the law. Cf. last week's traffic on Cypherpunks. --Tim May The Feds have shown their hand: they want a ban on domestic cryptography ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, ComSec 3DES: 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1398269 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."
Carl Ellison writes: : >SEC 3. EXPORTS OF ENCRYPTION. : > (a) EXPORT CONTROL OF ENCRYPTION PRODUCTS NOT CONTROLLED ON THE UNITED : >STATES MUNITIONS LIST. - The Secretary of Commerce, with the concurrence of : >the Secretary of Defense, shall have the authority to control the export of : >encryption products not controlled on the United States Munitions List. : >Decisions made by the Secretary of Commerce with the concurrence of the : >Secretary of Defense with respect to exports of encryption products under : >this section shall not be subject to judicial review. : : I take it this last sentence is intended to kill Bernstein, Karn and Junger : and any other cases we might try to bring. Correct? That may be the wish, but it is probably not the intent, since the government already argues that the administrative decision to classify a ``product'' as an ``encryption product'' is not subject to administrative review. That was the case pretty clearly under the ITAR, though it may not be the case under the EAR. But in any case this language would not prevent the courts from hearing constitutional challenges to the regulations themselves or to their application in particular cases. So it will not affect the constitutional claims in Bernstein, Karn and Junger or similar claims brought by anyone else, even if it passes. But it might affect some of the administrative law issues that are still being raised in the Karn case. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists
Carl Ellison says:
Decisions made by the Secretary of Commerce with the concurrence of the Secretary of Defense with respect to exports of encryption products under this section shall not be subject to judicial review.
I take it this last sentence is intended to kill Bernstein, Karn and Junger and any other cases we might try to bring. Correct?
How could that possibly be binding? Anything the court system thinks is subject to judicial review is subject to judicial review. -- Ben
On Wed, 17 Sep 1997, Ben Cox wrote:
I take it this last sentence is intended to kill Bernstein, Karn and Junger and any other cases we might try to bring. Correct?
How could that possibly be binding? Anything the court system thinks is subject to judicial review is subject to judicial review.
Didn't Patel rule late last year that that sort of restriction was nonsense?
At 2:24 PM -0700 9/17/97, Ben Cox wrote:
Carl Ellison says:
Decisions made by the Secretary of Commerce with the concurrence of the Secretary of Defense with respect to exports of encryption products under this section shall not be subject to judicial review.
I take it this last sentence is intended to kill Bernstein, Karn and Junger and any other cases we might try to bring. Correct?
How could that possibly be binding? Anything the court system thinks is subject to judicial review is subject to judicial review.
This is not entirely correct. I haven't thought about this for a while, that is, since we passed this hurdle in Bernstein in April '96 -- how time flies when you're fighting State, Commerce, NSA, and Justice. IEEPA, as yet, lacks a preclusion provision; they'll stick one in if they can. We faced the issue under AECA/ITAR; 22 USC Sec. 2778(h) is designed to preclude judicial review of export decisions. I argued that Bernstein's case nonetheless could be heard, because: (i) he was challenging the law itself, not a licensing decision; (ii) he had a constitutional claim. Judge Patel took the latter route. It is almost a contradiction in terms to say that a constitutional Q can't be heard by a court. The Supreme Court has made it difficult to preclude judicial review of constitutional claims -- we relied on Webster v. Doe, involving a discrimination claim against CIA, and CIA had a decent case that the DCI has unreviewable discretion to terminate someone. Judicial review wasn't precluded. The federal courts are, however, courts of limited jurisdiction. While the Supreme Court is built into the Constitution, its appellate jurisdiction is greater than what Article III specifies. Moreover, the lower federal courts exist because Congress created them - they have the jurisdiction that Congress set in the various Judiciary Acts. There are nasty, difficult Qs about how much Congress can do with that power. It's pretty deep federal court jurisprudence stuff, and one possible answer is that the state courts are the final line of defense, because they are courts of general jurisdiction. But as a practical matter I'd say that Congress would need to amend SAFE much more even to have a fair chance of precluding judicial review of a First Amendment claim. That's one reason why Bernstein is an important case. Lee Tien
At 04:15 PM 9/17/97 -0400, Carl Ellison wrote:
At 04:10 PM 9/15/97 -0700, Greg Broiles wrote:
AMENDMENTS TO H.R. 695 OFFERED BY MR. WELDON AND MR. DELLUMS
[...]
Decisions made by the Secretary of Commerce with the concurrence of the Secretary of Defense with respect to exports of encryption products under this section shall not be subject to judicial review.
I take it this last sentence is intended to kill Bernstein, Karn and Junger and any other cases we might try to bring. Correct?
As I remember _Karn_ (sorry to hand-wave, am behind a very slow net connection at the moment), it's primarily a challenge to State/BXA's decisions with respect to a particular export license application. The sentence above from the Weldon/Dellums amendment would eliminate that sort of challenge. Congress cannot eliminate challenges like those in _Bernstein_ and _Junger_ which are challenges to a statutory/regulatory scheme on the grounds that it is unconstitutional. The only way to avoid/eliminate judicial review of a constitutional challenge to a statute is to amend the constitution itself. (cf. the "no offensive flag-burning" amendments which are discussed from time to time, which are unconstitutional when expressed as ordinary statutes or as administrative regulations, see _Texas v. Johnson_ and _US v. Eichman_.) -- Greg Broiles | US crypto export control policy in a nutshell: gbroiles@netbox.com | Export jobs, not crypto. http://www.io.com/~gbroiles | http://www.parrhesia.com
Greg Broiles writes: : Congress cannot eliminate challenges like those in _Bernstein_ and _Junger_ : which are challenges to a statutory/regulatory scheme on the grounds that : it is unconstitutional. The only way to avoid/eliminate judicial review of : a constitutional challenge to a statute is to amend the constitution : itself. (cf. the "no offensive flag-burning" amendments which are discussed : from time to time, which are unconstitutional when expressed as ordinary : statutes or as administrative regulations, see _Texas v. Johnson_ and _US : v. Eichman_.) I do not want to give Congress any ideas, but there is also the possibility that they could take away the federal courts' jurisdiction to hear constitutional questions without amending the constitution. On the other hand it is possible that the courts would find a way to hold that that limitation on their jurisdiction is unconstitutional. Under the first judiciary act the federal courts did not have original jurisdiction over civil claims arising under federal law (which would include the constitution). -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists
participants (7)
-
Ben Cox -
Carl Ellison -
f_estemaļ¼ alcor.concordia.ca -
Greg Broiles -
Lee Tien -
Peter D. Junger -
Tim May