Re: Exporting software doesn't mean exporting (was: Re: lp ?)

[Michael Froomkin <froomkin@law.miami.edu>]

I am delighted to discover that there is a person in this world who reads 
the ITAR more broadly than I do.  I can see how the ITAR could be read to 
reach a Frenchman who sends crypto via email to a German that happens, 
through no fault of his own, to be routed via New York; we might have to 
talk about whether the scienter requirment would mean that M. Frenchman 
knew or should have known about the routing.  [NB "could be read" does 
not equal "should be read".]

Not even I, however, would imagine that any court anywhere, could read 
the ITAR or the legislation authorizing it (which is more to the point) 
as reaching two foreigners talking abroad, neither of whom is a US person.

Not only does the US lack the jursidction to make such a rule, it has 
never sought to make such a rule in any context I am aware of (no, 
foreign wars don't count).  Not even in anti-trust or securities, 
where the extraterritorial jurisdictional assertions are premised on the 
effects of the foreign act to the US market...

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
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