[43066] in Cypherpunks
Re: Exporting software doesn't mean exporting (was: Re: lp ?)
daemon@ATHENA.MIT.EDU (hallam@w3.org)
Tue Nov 7 15:58:02 1995
To: Michael Froomkin <froomkin@law.miami.edu>
Cc: hallam@w3.org, <cypherpunks@toad.com>
In-Reply-To: Your message of "Tue, 07 Nov 95 14:39:10 EST."
<Pine.SUN.3.91.951107143034.22821C-100000@viper.law.miami.edu>
Date: Tue, 07 Nov 95 15:43:32 -0500
From: hallam@w3.org
>> I would admit that a court might do this in an effort to hold the
>> statute constitutional, but a court might also hold the regulations
>> unconstitutional because they are overbroad. Remember, the first
>Technically, this is holding the regulations ultra vires, not
>unconsitutional; the difference matters.
I thought Peter was arguing that the separation of powers would be
affected? Surely this would be a constitutional question?
On the strict ultra-vires question and enforcement on non US citizens
may I sugest two hypotheticals?
Hyptotheical A:
I develop a crypoto system in Geneva and pass the source code to my
co-worker. Neither of us have export certificates.
Hypothetical B:
I set up an anonymous FTP site to recieve PGP from abroad. It arrives
and I hand it over to Fred who has agreed to distribute any material.
It seems to me that in Hypothetical B I am certainly acting in a manner
which a US court might consider to be something the US government might
seek to prevent. Effectively I would be trafficing. The fact that I only
hand the goods over to non-US citizens would appear to be irrelevant.
Defining the precise distinction between what is covered and what is
not is difficult. It is easier to draw the boundaries broadly and let
the courts decide what is clearly outside the scope. it is not
necessarily in the governments interests to have sharply defined lines
Phill
