Re: Anti-Electronic Racketeering Act of 1995 (fwd)

[jfmesq@ibm.net (James F. Marshall)]

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>In the subsection that explicitly mentions crypto, it says that it's
>unlawful to put (non-GAK) crypto on an open net, "regardless of 
>whether such software has been designated non-exportable". If the 
>phrase "nonexportable" means the same thing in the context of this 
>subsection, then provision (b) would only seem to apply RICO to stuff 
>that already falls under ITAR.

Pardon me if I misunderstood your point.  I haven't read the whole
bill, but I read the "regardless" phrase with a different emphasis. 
In short, that language appears to mean that one could be pounded with
RICO for uploading crypto software even if the crypto is EXPORTABLE.

The part about subsequent instances of actual access to non-exportable
crypto by foreigners, etc. appears to address a different situation --
the situation where the crypto is non-exportable.  In this different
and much more "defiant" situation, the language would allow the feds
to count predicate acts, not merely according to the actual instances
of uploading activity, but also according to the number of times the
crypto is downloaded by foreigners, etc.  Perhaps a 10,000 to 1 ratio?

It is unclear, not having read the entire bill, whether the onerous
provision in the case of non-exportable crypto would apply in the case
of exportable crypto.  Perhaps our resident federal prosecutor might
volunteer some insights into how the government might prove thousands
of predicate acts, and thus a huge pattern of racketeering activity, 
as a result of a defendant uploading non-exportable crypto once to one
site, and how the government might argue that uploading exportable 
crypto once to one known mirrored site (e.g., hobbes) would constitute
uploads to all the mirrors -- i.e., multiple predicate acts.

This email is academic speculation.  This email is not legal advice,
is not a consultation with counsel, and does not create an attorney-
client relationship.  (As a condition of entering into an attorney-
client relationship, I require a formal, ink-signed fee agreement.)

- --Jim


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