National Security Committee amendments to SAFE

Got a fax from Dellums' office this afternoon (finally!) with the
amendments from the National Security committee to SAFE - this will be on
the web at <http://www.parrhesia.com/safe-dellums.html>. 

---

AMENDMENTS TO H.R. 695
OFFERED BY MR. WELDON AND MR. DELLUMS

Strike Section 3 and insert the following:

SEC 3. EXPORTS OF ENCRYPTION.
	(a) EXPORT CONTROL OF ENCRYPTION PRODUCTS NOT CONTROLLED ON THE UNITED
STATES MUNITIONS LIST. - The Secretary of Commerce, with the concurrence of
the Secretary of Defense, shall have the authority to control the export of
encryption products not controlled on the United States Munitions List.
Decisions made by the Secretary of Commerce with the concurrence of the
Secretary of Defense with respect to exports of encryption products under
this section shall not be subject to judicial review.

	(b) LICENSE EXCEPTION FOR CERTAIN ENCRYPTION PRODUCTS - Encryption
products with encryption strength equal to or less than the level
identified in subsection (d) shall be eligible for export under a license
exception after a 1-time review, if the encryption product being exported
does not include features that would otherwise require licensing under
applicable regulations, is not destined for countries, end-users, or
end-uses that the Secretary of Commerce has determined by regulation, with
the concurrence of the Secretary of Defense, are ineligible to receive such
products, and is otherwise qualified for export.

	(c) ONE-TIME PRODUCT REVIEW - The Secretary of Commerce, with the
concurrence of the Secretary of Defense, shall specify the information that
must be submitted for the 1-time review referred to in subsection (b).

	(d) ELIGIBLE ENCRYPTION LEVELS -

		(1) INITIAL ELIGIBILITY LEVEL. - Not later than 30 days after the date of
the enactment of this Act, the President shall notify the Congress of the
maximum level of encryption strength that could be exported from the United
States under license exception pursuant to this section without harm to the
national security of the United States. Such level shall not become
effective until 60 days after such notification.

		(2) ANNUAL REVIEW OF ELIGIBILITY LEVEL - Not later than 1 year after
notifying the Congress of the maximum level of encryption strength under
paragraph (1), and annually thereafter, the President shall notify the
Congress of the maximum level of encryption strength that could be exported
from the United States under license exception pursuant to this section
without harm to the national security of the United States. Such level
shall not become effective until 60 days after such notification.

		(3) CALCULATION OF 60-DAY PERIOD. - The 60-day period referred to in
paragraphs (1) and (2) shall be computed by excluding -

			(A) the days on which either House is not in session because of an
adjournment of more than 3 days to a day certain or an adjournment of the
Congress sine die; and

			(B) each Saturday and Sunday, not excluded under subparagraph (A), when
either House is not in session.

	(e) EXERCISE OF EXISTING AUTHORITIES. - The Secretary of Commerce and the
Secretary of Defense may exercise the authorities they have under other
provisions of law to carry out this section.



Amend the title so as to read "A bill to amend title 18, United States
Code, to affirm the rights of United States persons to use and sell
encryption."

[Note - title 18 is the criminal section of the US Code. SAFE's original
title was "To amend title 18, United States Code, to affirm the rights of
United States persons to use and sell encryption and to relax export
controls on encryption."]



--
Greg Broiles                | US crypto export control policy in a nutshell:
gbroiles@netbox.com         | 
http://www.io.com/~gbroiles | Export jobs, not crypto.

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At 04:10 PM 9/15/97 -0700, Greg Broiles wrote:
>AMENDMENTS TO H.R. 695
>OFFERED BY MR. WELDON AND MR. DELLUMS
>
>Strike Section 3 and insert the following:
>
>SEC 3. EXPORTS OF ENCRYPTION.
>	(a) EXPORT CONTROL OF ENCRYPTION PRODUCTS NOT CONTROLLED ON THE UNITED
>STATES MUNITIONS LIST. - The Secretary of Commerce, with the concurrence of
>the Secretary of Defense, shall have the authority to control the export of
>encryption products not controlled on the United States Munitions List.
>Decisions made by the Secretary of Commerce with the concurrence of the
>Secretary of Defense with respect to exports of encryption products under
>this section shall not be subject to judicial review.

I take it this last sentence is intended to kill Bernstein, Karn and Junger
and any other cases we might try to bring.  Correct?

Is anyone starting a campaign to get congressfolks to kill both McCain-Kerrey
and the amended SAFE?

 - Carl

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+------------------------------------------------------------------+
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|CyberCash, Inc.                      http://www.cybercash.com/    |
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At 2:24 PM -0700 9/17/97, Ben Cox wrote:
>Carl Ellison says:
>>>Decisions made by the Secretary of Commerce with the concurrence of the
>>>Secretary of Defense with respect to exports of encryption products under
>>>this section shall not be subject to judicial review.
>>
>>I take it this last sentence is intended to kill Bernstein, Karn and Junger
>>and any other cases we might try to bring.  Correct?
>
>How could that possibly be binding?  Anything the court system thinks is
>subject to judicial review is subject to judicial review.

To all responding to Carl's comments, we talked about this last week.

It is clear that the law cannot preclude Supreme Court rule, of the law
itself. It is also likely that any particular target of the surveillance
could challenge the basic constitutionality of the law.

Cf. last week's traffic on Cypherpunks.

--Tim May

The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

Carl Ellison writes:

: >SEC 3. EXPORTS OF ENCRYPTION.
: >	(a) EXPORT CONTROL OF ENCRYPTION PRODUCTS NOT CONTROLLED ON THE UNITED
: >STATES MUNITIONS LIST. - The Secretary of Commerce, with the concurrence of
: >the Secretary of Defense, shall have the authority to control the export of
: >encryption products not controlled on the United States Munitions List.
: >Decisions made by the Secretary of Commerce with the concurrence of the
: >Secretary of Defense with respect to exports of encryption products under
: >this section shall not be subject to judicial review.
: 
: I take it this last sentence is intended to kill Bernstein, Karn and Junger
: and any other cases we might try to bring.  Correct?

That may be the wish, but it is probably not the intent, since the
government already argues that the administrative decision to classify
a ``product'' as an ``encryption product'' is not subject to
administrative review.  That was the case pretty clearly under the
ITAR, though it may not be the case under the EAR.

But in any case this language would not prevent the courts from
hearing constitutional challenges to the regulations themselves or to
their application in particular cases.  So it will not affect the
constitutional claims in Bernstein, Karn and Junger or similar  claims
brought by anyone else, even if it passes.  But it might affect some
of the administrative law issues that are still being raised in the
Karn case.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

Carl Ellison says:
>>Decisions made by the Secretary of Commerce with the concurrence of the
>>Secretary of Defense with respect to exports of encryption products under
>>this section shall not be subject to judicial review.
>
>I take it this last sentence is intended to kill Bernstein, Karn and Junger
>and any other cases we might try to bring.  Correct?

How could that possibly be binding?  Anything the court system thinks is
subject to judicial review is subject to judicial review.

-- Ben

On Wed, 17 Sep 1997, Ben Cox wrote:

> >I take it this last sentence is intended to kill Bernstein, Karn and Junger
> >and any other cases we might try to bring.  Correct?
> 
> How could that possibly be binding?  Anything the court system thinks is
> subject to judicial review is subject to judicial review.

Didn't Patel rule late last year that that sort of restriction was
nonsense?

>At 2:24 PM -0700 9/17/97, Ben Cox wrote:
>>Carl Ellison says:
>>>>Decisions made by the Secretary of Commerce with the concurrence of the
>>>>Secretary of Defense with respect to exports of encryption products under
>>>>this section shall not be subject to judicial review.
>>>
>>>I take it this last sentence is intended to kill Bernstein, Karn and Junger
>>>and any other cases we might try to bring.  Correct?
>>
>>How could that possibly be binding?  Anything the court system thinks is
>>subject to judicial review is subject to judicial review.

This is not entirely correct.

I haven't thought about this for a while, that is, since we passed this
hurdle in Bernstein in April '96 -- how time flies when you're fighting
State, Commerce, NSA, and Justice.  IEEPA, as yet, lacks a preclusion
provision; they'll stick one in if they can.

We faced the issue under AECA/ITAR; 22 USC Sec. 2778(h) is designed to
preclude judicial review of export decisions.  I argued that Bernstein's
case nonetheless could be heard, because:  (i) he was challenging the law
itself, not a licensing decision; (ii) he had a constitutional claim.
Judge Patel took the latter route.

It is almost a contradiction in terms to say that a constitutional Q can't
be heard by a court.  The Supreme Court has made it difficult to preclude
judicial review of constitutional claims -- we relied on Webster v. Doe,
involving a discrimination claim against CIA, and CIA had a decent case
that the DCI has unreviewable discretion to terminate someone.  Judicial
review wasn't precluded.

The federal courts are, however, courts of limited jurisdiction.  While the
Supreme Court is built into the Constitution, its appellate jurisdiction is
greater than what Article III specifies.  Moreover, the lower federal
courts exist because Congress created them - they have the jurisdiction
that Congress set in the various Judiciary Acts.  There are nasty,
difficult Qs about how much Congress can do with that power.  It's pretty
deep federal court jurisprudence stuff, and one possible answer is that the
state courts are the final line of defense, because they are courts of
general jurisdiction.

But as a practical matter I'd say that Congress would need to amend SAFE
much more even to have a fair chance of precluding judicial review of a
First Amendment claim.  That's one reason why Bernstein is an important
case.

Lee Tien

At 04:15 PM 9/17/97 -0400, Carl Ellison wrote:
>At 04:10 PM 9/15/97 -0700, Greg Broiles wrote:
>>AMENDMENTS TO H.R. 695
>>OFFERED BY MR. WELDON AND MR. DELLUMS
>>
[...]
>>Decisions made by the Secretary of Commerce with the concurrence of the
>>Secretary of Defense with respect to exports of encryption products under
>>this section shall not be subject to judicial review.
>
>I take it this last sentence is intended to kill Bernstein, Karn and Junger
>and any other cases we might try to bring.  Correct?

As I remember _Karn_ (sorry to hand-wave, am behind a very slow net
connection at the moment), it's primarily a challenge to State/BXA's
decisions with respect to a particular export license application. The
sentence above from the Weldon/Dellums amendment would eliminate that sort
of challenge.

Congress cannot eliminate challenges like those in _Bernstein_ and _Junger_
which are challenges to a statutory/regulatory scheme on the grounds that
it is unconstitutional. The only way to avoid/eliminate judicial review of
a constitutional challenge to a statute is to amend the constitution
itself. (cf. the "no offensive flag-burning" amendments which are discussed
from time to time, which are unconstitutional when expressed as ordinary
statutes or as administrative regulations, see _Texas v. Johnson_ and _US
v. Eichman_.) 


--
Greg Broiles                | US crypto export control policy in a nutshell:
gbroiles@netbox.com         | Export jobs, not crypto.
http://www.io.com/~gbroiles | http://www.parrhesia.com

Greg Broiles writes:

: Congress cannot eliminate challenges like those in _Bernstein_ and _Junger_
: which are challenges to a statutory/regulatory scheme on the grounds that
: it is unconstitutional. The only way to avoid/eliminate judicial review of
: a constitutional challenge to a statute is to amend the constitution
: itself. (cf. the "no offensive flag-burning" amendments which are discussed
: from time to time, which are unconstitutional when expressed as ordinary
: statutes or as administrative regulations, see _Texas v. Johnson_ and _US
: v. Eichman_.) 

I do not want to give Congress any ideas, but there is also the
possibility that they could take away the federal courts' jurisdiction
to hear constitutional questions without amending the constitution.
On the other hand it is possible that the courts would find a way to
hold that that limitation on their jurisdiction is unconstitutional.

Under the first judiciary act the federal courts did not have original
jurisdiction over civil claims arising under federal law (which would
include the constitution).

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists