Propriety of crypto on Munitions List

[hfinney@shell.portal.com]

In U.S. v Martinez, Elizabeth Martinez and her fiance were convicted
of violating the Arms Export Control Act by exporting cryptographic
hardware, namely "Videocipher II" video descrambling devices.  (I
believe these are used to descramble satellite TV broadcasts of HBO and
other networks.)  Defendants appealed, asking the court to overturn
their conviction on the grounds that "the inclusion of 'cryptographic
devices and software (encoding and decoding)' on the [Munitions] list is
overbroad because this heading includes items already in the public domain
whose dissemination would pose no security threat, and which lack any
characteristic that is inherently or predominantly military."

The 11th circuit appellate court rejected this argument in 904 F2d 601.
The court decided that the question of whether an item properly belongs
on the Munitions List is inherently political and is excluded from judicial
review.  "The question whether a particular item should have been placed
on the Munitions List possesses nearly every trait that the Supreme
Court has enumerated traditionally renders a question 'political'....
No satisfactory or manageable standards exist for judicial determination
of the issue, as defendants themselves acknowledge the disagreement
among experts as to whether Videocipher II belongs on the List....
Neither the courts nor the parties are privy to reports of the intelligence
services on which this decision, or decisions like it, may have been
based....  The consequences of uninformed judicial action could be grave."

In these days of judicial activism, it is ironic that one time when civil
libertarians might wish the court to take a hand and reverse a decision
made by the other branches of government, the court chooses not to do so.

Shortly before this decision was issued, the AECA was amended by adding
the following section, 22 USC 2778(h): "The designation by the President
(or by an official to whom the President's functions under subsection (a)
have been duly delegated), in regulations issued under this section, of
items as defense articles or defense services for purposes of this
section shall not be subject to judicial review."

So Congress and the court agree that the propriety of an item's placement
on the Munitions List is not a matter for the courts to decide.  There
appears to be little chance that any prosecution for AECA violations
will result in the judical removal of cryptographic equipment from the
Munitions List.

Hal Finney
hfinney@shell.portal.com