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

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

On Tue, 7 Nov 1995 hallam@w3.org wrote:

> >> I would admit that a court might do this in an effort to hold the
> >> statute constitutional, but a court might also hold the regulations
> >> unconstitutional because they are overbroad.  Remember, the first
> 
> >Technically, this is holding the regulations ultra vires, not 
> >unconsitutional; the difference matters.
> 
> I thought Peter was arguing that the separation of powers would be
> affected? Surely this would be a constitutional question?

Yes, that's what he said; I don't agree.

> 
> On the strict ultra-vires question and enforcement on non US citizens
> may I sugest two hypotheticals?
> 
> Hyptotheical A:
> 
> I develop a crypoto system in Geneva and pass the source code to my
> co-worker. Neither of us have export certificates.

No problem if neither of you are US persons (citizen/green card holder)
> 
> Hypothetical B:
> 
> I set up an anonymous FTP site to recieve PGP from abroad. It arrives 
> and I hand it over to Fred who has agreed to distribute any material.

No problem if you and fred are non-US persons abroad.  Big problem if 
Fred is in the US...

> 
> 
> It seems to me that in Hypothetical B I am certainly acting in a manner 
> which a US court might consider to be something the US government might
> seek to prevent. Effectively I would be trafficing. The fact that I only 
> hand the goods over to non-US citizens would appear to be irrelevant.

No, even our government doesn't seek to regulate crypto transfers between 
two foreign persons living outside the US!  (It might attempt to get a 
foreign government to do something, but that's different.)



A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
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