Feds trying to stop judicial review of Commerce Dept export controls

[John Gilmore <gnu@toad.com>]

[They appear to be trying to transfer all the export controls from the
State Dept to the Commerce Dept -- including all the unconstitutional
and heavy-handed parts.		-- John]

Date: Wed, 25 Sep 1996 11:34:23 -0400
From: <djw@cdt.org> (Daniel J. Weitzner)

Memorandum
To:     Interested Parties
Re:     Proposed Amendments to Preclude Judicial Review in the Export
	Administration Act of 1996 (H.R. 361)
Date:   September 25, 1996

Failed U.S. encryption export controls continue to threaten Internet
security, individual privacy, and the competitiveness of U.S. industry.
Proposed amendments to H.R. 361, The Omnibus Export Administration Act of
1996 (see attached), would make this problem worse by preventing judicial
review of Commerce Department export control decisions, and should be
defeated.  These Amendments:

*       Would further entrench a failed U.S. encryption policy
*       Would provide extraordinary relief that is unjustified, and would
shift the balance of power in the ongoing public debate over Internet
security.
*       Will prevent judicial review of a broad area of public policy
affecting the First and Fourth Amendment rights of Americans.
*       Are inappropriate legislative meddling in ongoing controversies
*       Are unnecessary as the EAA already contains strict judicial review
provisions.

On balance, the Amendments would shelter the highly sensitive area of
Internet security from much-needed judicial scrutiny .  The Amendments are
inappropriate, unjustified, and should not be approved.

The Amendments entrench a failed U.S. encryption policy  -- Administration
export regulation of encryption keep U.S. computer users from protecting
their privacy online and damage the competitiveness of U.S. industry.
Three active cases in Federal Court are challenging these export controls.
Three bills have been proposed in this session of Congress with bipartisan
support to address what many believe to be the inappropriate application of
export controls to encryption exports.   The Amendments would further
entrench these controversial regulations by sheltering them from
much-needed judicial scrutiny.

The Amendments provide extraordinary, unjustified relief -- The Amendments
would preclude all judicial review under the Administrative Procedure Act,
including challenges to arbitrary and capricious rule-making or improper
statutory interpretation.  They would extend the already limited judicial
review provisions in the original EAA and H.R.361 to preclude nearly all
substantive review.   Congress has made no findings that would suggest that
such unusual relief is warranted.  Typically, relief from judicial review
might be granted in areas where excessive or inappropriate litigation is
feared in areas that Congress feels are well-settled.  Such is not the case
here.  The problem with encryption export controls has not been too much
litigation.

The Amendments prevent judicial review of decisions that implicate First,
Fourth, and Fifth Amendment rights -- Export controls have been the
Administration's exclusive vehicle for the its key escrow encryption
proposals -- which have a grave impact on American's First, Fourth, and
Fifth amendment right.  The Amendments would thus preclude judicial review
in an area broadly affecting the rights of individuals and the growth of a
new medium.

The Amendments will likely interfere with important cases and controversies
-- These Amendments would raise a serious impediment to those seeking
judicial relief from what many believe to be unfair encryption export
control policies.  Judicial review provisions in the EAA and the Arms
Export Control Act (AECA) were the basis for a federal judge's recent
dismissal of a challenge to the encryption export controls.   The EAA
provisions will soon take on added significance as it is widely believed
that the Administration will shift jurisdiction over encryption export
controls from the State Department to the Commerce Department in the near
future.

The Amendments are unnecessary -- H.R. 361 as passed by the House already
contains significant judicial review limitations.  The bill already
provides unusual constraints -- on both subject matter and venue -- for
challenges to Commerce decision-making under the Act. There is little to
indicate that the further extraordinary relief of these Amendments is
required.

*  *  *  *  *

Encryption export controls represent an area where it is widely believed
that the Administration is abusing its discretion in order to use powerful
export regulations to influence the domestic market for and use of
important technologies.  Without recourse in the Executive Branch -- or in
Congress this session -- concerned parties have been forced to turn to the
courts.  It is in just such a critical area where parties are most in need
of judicial review.  The Amendments suggested would serve to deny
individuals and companies their much-needed day in court, have not been
justified, and should not be approved.

For more information, please contact:

                Daniel Weitzner, Deputy Director        <djw@cdt.org>
                Alan Davidson, Staff Counsel            <abd@cdt.org>

                Center for Democracy and Technology
                (202) 637-9800
Amendments to
The Omnibus Export Administration Act of 1996 (H.R. 361)


1.  Amendment to Section 112 (Administrative and Judicial Review)

Text:

On page 125, at line 17 in Section 112, insert:

"The provisions of this section shall constitute the exclusive basis for
judicial review of any agency action taken pursuant to this title and the
regulations promulgated thereunder."

On page 126, at line 1 in Section 112(a)(2), insert "only" between
"reviewed" and "by appeal".

On page 126, at line 3 in Section 112(a)(2), insert "and only" between
"Circuit," and "to the extent".

On page 126, at line 6 in Section 112(a)(2)(A), strike (A) and replace as
follows:

"(A) regulations fail to provide for procedures required by this title;".

On page 126, at line 12 in Section 112(a)(2)(B), insert "procedural
requirements of" between "violates" and "this title;".

On page 127, at line 5 in Section 112(a)(2)(H), insert "procedural" between
"with the" and "requirements".

On page 127, at line 7, add a new paragraph (3) to Section 112(a) as follows:

"Preclusion of Review. -- Substantive decisions of the Secretary and other
officials on (i) whether to impose, expand, or extend export controls on
any commodity or technology, (ii) whether and how to revise the Commodity
Control Index, (iii) whether and under what conditions to grant, deny, or
modify any export license, and (iv) any other questions of law or fact
under this title (except as otherwise provided in subsections (b)-(d) of
this section), shall be final and conclusive and no court shall have power
or jurisdiction to review any such decision by an action in the nature of
mandamus or otherwise."


============================================================================
Daniel J. Weitzner, Deputy Director                       <djw@cdt.org>
Center for Democracy and Technology                       202.637.9800 (v)
1634 Eye St., NW Suite 1100                               202-637.0968 (f)
Washington, DC 20006                                      http://www.cdt.org/

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