Re: Why no version of SAFE removes export ctrls, and all are dangerous

Declan McCullagh <declan@well.com>:

            Sure,
            removing export controls completely would benefit
            everyone, but SAFE doesn't go that far: Only software
            "that is generally available" overseas may be exported.
            Which means if I invent a new data-scrambling method
            that nobody overseas has developed, I'm screwed.

This is wrong.  I quoted the part earlier removing restrictions on
generally available software.  Here is what they say about that:


"(A) the term 'generally available' means, in the case of software 
(including software with
encryption capabilities), software that is offered for sale, license, or 
transfer to any person without
restriction, whether or not for consideration, including, but not 
limited to, over-the-counter retail
sales, mail order transactions, phone order transactions, electronic 
distribution, or sale on approval;


There's nothing about it having to be available overseas.  You are
probably confusing it with the hardware part:


"(4) HARDWARE WITH ENCRYPTION CAPABILITIES. -- The Secretary shall 
authorize the
export or reexport of computer hardware with encryption capabilities if 
the Secretary determines
that a product offering comparable security is commercially available 
outside the United States
from a foreign supplier, without effective restrictions.


But that part is hardware only.  Software just has to be freely
available to anyone who wants it.  It's almost like this was written
just for cypherpunks.

"John

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At 17:00 -0700 9/25/97, John Smith wrote:
>This is wrong.  I quoted the part earlier removing restrictions on
>generally available software.  Here is what they say about that:

Legislative history is not a guidepost I like to follow when considering
whether a bill is a good one. Note the Supremes largely rejected the
government's arguments that the legislative history of the CDA justified it
as a law. Instead you should look at the plain text of the law, which says
software not requiring a license is:

"(A) any software, including software with encryption capabilities
                   "(i) that is generally available, as is, and is
                    designed for installation by the purchaser; or
                    "(ii) that is in the public domain for which
                    copyright or other protection is not available
                    under title 17, United States Code, or that is
                    available to the public because it is generally
                    accessible to the interested public in any form; or
>
>There's nothing about it having to be available overseas.  You are
>probably confusing it with the hardware part:

Nope, the "generally available" clause above talks about software. Reread
the text of the bill, not some staffer's wet dreams about what they want it
to say.

Then there's the bit Tim was complaining about:

       "(3) SOFTWARE WITH ENCRYPTION CAPABILITIES. -- The Secretary shall
       authorize the export or reexport of software with encryption
capabilities for
       nonmilitary end-uses in any country to which exports of software of
similar
       capability are permitted for use by financial institutions not
controlled in fact by
       United States persons, unless there is substantial evidence that
such software will
       be --

              "(A) diverted to a military end-use or an end-use supporting
              international terrorism;
              "(B) modified for military or terrorist end-use; or
              "(C) reexported without any authorization by the United States
              that may be required under this Act.

Of course there's substantial evidence that PGP etc. will be used by
unapproved people. That's another problem with SAFE.

-Declan


-------------------------
Declan McCullagh
Time Inc.
The Netly News Network
Washington Correspondent
http://netlynews.com/