NSA & State Fears ITAR Lawsuits

With the talk about Phil Karn's latest encounter with the ITAR
(International Trafficking in Arms Regulations) issue over Schneier's
source code diskette, I thought I'd pass on an interesting comment I
heard recently. 

Someone who's had dealings with the NSA and State over these issues
saw some memos, but was not allowed to make copies of them, which
indicated that State's lawyer's were very concerned that an ITAR case
involving software *not* ever reach the courts, because they felt the
government's case was very weak and that a probable loss would be a
serious setback in other areas.

Make of this what you wish, but I should note that Jim Bidzos or
someone like him (I just don't remember whom) at the 2nd RSA
Conference, January 1993, said something very similar to this. Namely,
that the government has generally avoided ITAR cases involving written
material and similar material because of the shaky Constitutional
basis. 

(Shipping a few packing crates full of mag tapes of weapons designs,
nuclear secrets, etc., would probably be prosecuted, but shipping a
couple of diskettes of C code, based on and essentially identical (no
matter what the letter to Phil K. says) to the code published in a
freely available book, sounds like precisely the kind of ITAR case the
governments fears the most.)

Note however, that I am not prepared to make myself a test case here!
Anybody who does so, should, in my opionion, be "judgement proof" (to
use Duncan Frissell's term). 

(Suing the government is less dangerous, but probably pointless....and
maybe not even possible. A "test case" would probably involved someone
very publically and very in-your-facedly exporting the diskettes and
then awaiting an ITAR prosecution. Which might never come...no
precedent would be established, the ITAR laws would not be changed.)

Just my opinion here, but I'm not sure this case is central to the
real issues. I applaud Phil for trying to get the diskettes ruled
exportable, but fighting a long legal battle is not necessarily a high
priority, as I see things.  (Usual caveats about people doing whatever
they want to do, about Cypherpunks not being an organized group and
hence can't have official projects, blah blah.)

Good luck!

--Tim May

-- 
..........................................................................
Timothy C. May         | Crypto Anarchy: encryption, digital money,  
tcmay@netcom.com       | anonymous networks, digital pseudonyms, zero
408-688-5409           | knowledge, reputations, information markets, 
W.A.S.T.E.: Aptos, CA  | black markets, collapse of governments.
Higher Power: 2^859433 | Public Key: PGP and MailSafe available.
"National borders are just speed bumps on the information superhighway."

Timothy C. May writes:
 >                     A "test case" would probably involved someone
 > very publically and very in-your-facedly exporting the diskettes and
 > then awaiting an ITAR prosecution.

Perhaps some national organization with a modicum of media prominence
could make this move.  It'd make a more impressive CNN tidbit.

--
| GOOD TIME FOR MOVIE - GOING ||| Mike McNally <m5@tivoli.com>       |
| TAKE TWA TO CAIRO.          ||| Tivoli Systems, Austin, TX:        |
|     (actual fortune cookie) ||| "Like A Little Bit of Semi-Heaven" |

Mike McNally says:
> Timothy C. May writes:
>  >                     A "test case" would probably involved someone
>  > very publically and very in-your-facedly exporting the diskettes and
>  > then awaiting an ITAR prosecution.
> Perhaps some national organization with a modicum of media prominence
> could make this move.  It'd make a more impressive CNN tidbit.

We have a test case already. Phil Karn being denied an export license
will be sufficient for standing as soon as he's exhausted his
administrative appeals.

Perry

Someone who's had dealings with the NSA and State over these issues
   saw some memos, but was not allowed to make copies of them, which
   indicated that State's lawyer's were very concerned that an ITAR case
   involving software *not* ever reach the courts, because they felt the
   government's case was very weak and that a probable loss would be a
   serious setback in other areas.

Is there any chance that these memos would be subject to release under
the FOIA?

						- Bill

Bill Sommerfeld says:
>    Someone who's had dealings with the NSA and State over these issues
>    saw some memos, but was not allowed to make copies of them, which
>    indicated that State's lawyer's were very concerned that an ITAR case
>    involving software *not* ever reach the courts, because they felt the
>    government's case was very weak and that a probable loss would be a
>    serious setback in other areas.
> 
> Is there any chance that these memos would be subject to release under
> the FOIA?

Probably. They would probably make excellent ammo in an ITAR lawsuit
if they actually existed and State actually "found" them in fulfilling
the FOIA request. I would suggest that someone with experience in
directing FOIA requests get details from Tim and then try to extract
the memos in question.

Perry

>    Someone who's had dealings with the NSA and State over these issues
>    saw some memos, but was not allowed to make copies of them, which
>    indicated that State's lawyer's were very concerned that an ITAR case
>    involving software *not* ever reach the courts, because they felt the
>    government's case was very weak and that a probable loss would be a
>    serious setback in other areas.
> 
> Is there any chance that these memos would be subject to release under
> the FOIA?
> 
> 						- Bill

I have no idea. I can provide the name of my source to someone who
wants to pursue it further (seriously pursue it, the way John Gilmore
and Lee Tien have pursued their FOIAs) and my source can say where he
was allowed to view the docs but not make copies. That might provide
clues.

--Tim May


-- 
..........................................................................
Timothy C. May         | Crypto Anarchy: encryption, digital money,  
tcmay@netcom.com       | anonymous networks, digital pseudonyms, zero
408-688-5409           | knowledge, reputations, information markets, 
W.A.S.T.E.: Aptos, CA  | black markets, collapse of governments.
Higher Power: 2^859433 | Public Key: PGP and MailSafe available.
"National borders are just speed bumps on the information superhighway."