Re: ITAR and hash functions (Perry's question)

["Perry E. Metzger" <perry@piermont.com>]

Phil Karn writes:
> Perry quoted part of the joint declaration of facts in my case and asked
> 
> >Would this not mean that the government is estopped from ever again
> >claiming that hash functions are export controlled under the ITAR?
> 
> Not according to them.

Yeah, I know not according to them. Thats not what counts. I'd like to
know what a lawyer thinks. Once they have declared that something
doesn't fit the munitions criteria I suspect they are estopped from
ever claiming again that it is munitions -- basic legal
principle. Sure, they can claim otherwise, but they aren't forbidden
by law from asserting their power to make buildings levitate, either.

> Furthermore, they repeatedly assert that under the power delegated to
> them by the President, they have the absolute power to add and delete
> items from the Munitions List and to make inexplicable, inconsistent
> and arbitrary rulings whenever they damn well feel like it, and no
> court can overrule them.

They can claim that they have the right to declare fingernail clippers
to be munitions, but that certainly couldn't stand up in court.

> So the bottom line is this: at the moment the ODTC will let you export
> hash functions as long as they don't encrypt data. They'll probably
> grant CJ requests to that effect. But they could change their minds at
> any time if they feel like it.
> 
> Isn't it wonderful to live under a government of laws, not of men?

Joy.

Perry