ITAR and hash functions (Perry's question)
Perry quoted part of the joint declaration of facts in my case and asked
Would this not mean that the government is estopped from ever again claiming that hash functions are export controlled under the ITAR?
Not according to them. They have made it clear throughout their filings that they consider each CJ request on a case-by-case basis. Furthermore, they repeatedly assert that under the power delegated to them by the President, they have the absolute power to add and delete items from the Munitions List and to make inexplicable, inconsistent and arbitrary rulings whenever they damn well feel like it, and no court can overrule them. They even feel free to ignore their own rules whenever they get too inconvenient. See my attorneys' brilliant analysis of why the ITAR as written clearly permits the export of public domain crypto code under the public domain exemption. It's about halfway through http://www.qualcomm.com/people/pkarn/export/karnresp.html But State wrote the rules, so they can ignore 'em whenever they feel like it. Why gosh, National Security is at stake! And that's something we mere mortals can't possibly know anything about. Grep for the word "estoppel" in their arguments -- I know they used it at least once to discuss this exact point. So the bottom line is this: at the moment the ODTC will let you export hash functions as long as they don't encrypt data. They'll probably grant CJ requests to that effect. But they could change their minds at any time if they feel like it. Isn't it wonderful to live under a government of laws, not of men? Phil
Phil Karn writes:
Perry quoted part of the joint declaration of facts in my case and asked
Would this not mean that the government is estopped from ever again claiming that hash functions are export controlled under the ITAR?
Not according to them.
Yeah, I know not according to them. Thats not what counts. I'd like to know what a lawyer thinks. Once they have declared that something doesn't fit the munitions criteria I suspect they are estopped from ever claiming again that it is munitions -- basic legal principle. Sure, they can claim otherwise, but they aren't forbidden by law from asserting their power to make buildings levitate, either.
Furthermore, they repeatedly assert that under the power delegated to them by the President, they have the absolute power to add and delete items from the Munitions List and to make inexplicable, inconsistent and arbitrary rulings whenever they damn well feel like it, and no court can overrule them.
They can claim that they have the right to declare fingernail clippers to be munitions, but that certainly couldn't stand up in court.
So the bottom line is this: at the moment the ODTC will let you export hash functions as long as they don't encrypt data. They'll probably grant CJ requests to that effect. But they could change their minds at any time if they feel like it.
Isn't it wonderful to live under a government of laws, not of men?
Joy. Perry
"Perry E. Metzger" writes: : : Phil Karn writes: : > Perry quoted part of the joint declaration of facts in my case and asked : > : > >Would this not mean that the government is estopped from ever again : > >claiming that hash functions are export controlled under the ITAR? : > : > Not according to them. : : Yeah, I know not according to them. Thats not what counts. But that is what counts initially : I'd like to : know what a lawyer thinks. Once they have declared that something : doesn't fit the munitions criteria I suspect they are estopped from : ever claiming again that it is munitions -- basic legal : principle. Sure, they can claim otherwise, but they aren't forbidden : by law from asserting their power to make buildings levitate, either. In general, the doctrine of estoppel is not applied against governmental agencies. To the extent that an agency is purportedly making decisions as to what the law is, it may or may not be bound by its earlier decisions, but it usually won't be. And it is not bound by its factual determinations. : > Furthermore, they repeatedly assert that under the power delegated to : > them by the President, they have the absolute power to add and delete : > items from the Munitions List and to make inexplicable, inconsistent : > and arbitrary rulings whenever they damn well feel like it, and no : > court can overrule them. : : They can claim that they have the right to declare fingernail clippers : to be munitions, but that certainly couldn't stand up in court. That would stand up in court and in any case the statute that is the basis for the ITAR says that the determination that something--including fingernail clippers--is on the Munitions Lists is not reviewable by the courts. (And a court held before that provision was passed that the question of whether commercial television descramblers were properly on the munitions list, as cryptographic devices, was a political question that could not be reviewed by the court. And that was, as I recall, a criminal case.) : > So the bottom line is this: at the moment the ODTC will let you export : > hash functions as long as they don't encrypt data. They'll probably : > grant CJ requests to that effect. But they could change their minds at : > any time if they feel like it. : > : > Isn't it wonderful to live under a government of laws, not of men? I am convinced that most, if not all, the restrictions in the ITAR on disclosing cryptographic software will be struck down by the courts as being unconstitutional under the first amendment, but it will not be an easy process. There are all sorts of constitutional provisions that are violated every day and though some of these violations will be overturned by courts, if and only if someone like Phil Karn challenges them in court, but the wheels of the law grind slowly. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH Internet: junger@pdj2-ra.f-remote.cwru.edu junger@samsara.law.cwru.edu
participants (3)
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Perry E. Metzger -
Peter D. Junger -
Phil Karn