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

[Brian A. LaMacchia <bal@martigny.ai.mit.edu>]

   From: lmccarth@cs.umass.edu (L. McCarthy)
   Date: Thu, 13 Jul 1995 08:12:00 -0400 (EDT)
   Reply-To: cypherpunks@toad.com (Cypherpunks Mailing List)

   bal writes:
   > It's much worse than this.  Look at the definition of "predicate act":
   > 
   >             `(b) For purposes of this section, each act of distributing
   >           software is considered a separate predicate act. Each instance in
   >           which nonexportable software is accessed by a foreign government, 
   >           an agent of a foreign government, a foreign national, or an agent 
   >           of a foreign national, shall be considered as a separate predicate
   >           act.
   > 
   > Now, since the bill also makes 1030A violations "racketeering
   > activities", all you need are two predicate acts and RICO comes into
   > play.  

   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.

What worries me is the first sentence: "each act of distributing
software is considered a predicate act."  It's not clear to me whether
this applies to (a)(1) unlicensed software or (a)(2) encryption programs
(or perhaps both).  Notice that (a)(1) says "transfer" not "distribute".
Perhaps the act of putting Alleged-RC4 on a FTP site is one act and
mailing a copy to Cypherpunks is another act.  That might be two
distributions and thus two predicate acts.

					--bal