Re: Disclosure of Public Knowledge to Foreigners

[Hal <hfinney@shell.portal.com>]

From: tcmay@got.net (Timothy C. May)
> "There is a reasonable chance the Supreme Court would see the overall
> absurdity of a situation where the knowledge is freely available to 200
> million adult Americans, with no restrictions whatsover on publication,
> discussion, etc., and yet uttering this knowledge in front of a foreigner
> is a crime."

It would be good if this happened.  Yet unfortunately I think it is
unlikely.  Absurdity is not necessarily sufficient to invalidate a law.
Especially in this case, if you read the judge's decision (at <URL:
http://www.qualcomm.com/people/pkarn/export/decision.html >) you see that
this issue is one which is "hands off" for the judiciary.

The question of designating whether items should be on the Munitions List
has been found both by the courts and by the legislature to be
"non-justiceable", something which the courts can't review.  It is
strictly in the purview of the legislative branch, which passes the law,
and the executive branch, which sets the policy and creates the list.
Courts are required to refrain from second-guessing them.

Of course this doesn't totally close the door, and if serious
constitutional questions arise, the court can consider this.  Phil Karn
attempted to do so, but did not succeed in this case.  Unfortunately
there is clear precedent at the appellate court level that First
Amendment concerns are not violated by export bans.  As long as you can
say whatever you want domestically, the government has a lot of latitude
to prevent you saying things to foreigners, even though that is illogical
in many contexts.

I feel, by the way, that this may soon present another line of attack on
the restrictions.  As the Internet becomes a dominant communications
medium, it will become more true than ever that these regulations have a
chilling effect on all communications relating to cryptography.  I can't,
right now, post crypto source code to this list without breaking the law.
Nor can I post it to sci.crypt.  How then can I participate in discussing
these matters in detail on the Internet?  Maybe I could put the material
on an export-restricted disk somewhere, but that does not allow for the
dynamic give-and-take which is so much a part of internet discussion.

So, in the context of the net, export controls are de facto content
controls on domestic discussion.  For now, maybe being unable to speak
in detail about crypto on the net isn't that big a handicap.  But in a
few years, Internet communication will be a big part of everyone's lives
(arguably) and being unable to present certain information will produce a
stronger First Amendment violation.

A couple more comments on Tim's message:

> Interestingly, according to a friend of mine (Mike Ward, of San Jose), it
> is much cheaper (or was when he did the analysis a couple of years ago) to
> have a chunk of text entered two or more times by humans and then XORed for
> errors than to OCR the text. This form of error correction--redundant
> entry--would presumably work well for Schneier's code, for example.

I can certainly believe it after reading about Phil's efforts.  And as I
point out, he actually did have a secretary type it in.  It is
disturbing, though, that the book had errors in it.  I wonder if it was
typeset by hand?  Is that possible in this day and age?

> What we are really about to run into is the "export of knowledge" issue,
> which I think the Constitution will have some pretty important things to
> say about. (It has long been the case that certain armaments knowledge, and
> atomic secrets as per the Atomic Energy Act, were restricted. But this
> knowledge was _also_ not in the public domain. There have not been many
> cases that I know of where knowledge was freely discussable within, say,
> the United States, by any citizens (and maybe others, such as permanent
> residents, foreign students at colleges, etc.) and yet this knowledge could
> not be "exported" outside the U.S.
> 
> Except with our crypto laws, and some related Munitions Act laws.

Unfortunately, as I noted above, so far no one has been able to come up
with a convincing Constitutional argument, especially in the face of the
Posey and Edler precedents, which are discussed by the judge in Phil's
case, and for which I have some excerpts at <URL:
http://www.portal.com/~hfinney/cryp_export2.html >.

I think the real solution frankly is to get the laws changed.  If the
laws are absurd, people should be taught about them, and they should
pressure their legislators to change them.  This is not an attractive
solution because it implies a lot of work and a long, slow process.  But
in the long run it will be better to establish a national consensus about
how to deal with these issues.  Then it will be harder for government to
place new restrictions in place.  I think the recent legislative action
reflects the beginnings of this process.  It may not succeed this year,
but hopefully in a few years, as more people get on the net, it will gain
momentum.

Ironically, the termination of the case again Phil Zimmermann may hurt
progress in this area.  Unfair and unjustified as the pending charges
against Phil were, they did at least raise people's consciousness about
the problems in current policies.  Phil did an excellent job of keeping
these issues in front of people in all sorts of media.

Now that there is no longer an articulate victim of unfair export laws
it may be harder to keep people thinking about the problem.  Perhaps we
need a new volunteer...

Hal