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..."

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"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