Re: "Technical data" exemptions in new crypto regs

["Richard L. Field" <field@pipeline.com>]

  In reply to Solveig Bernstein's First Amendment challenge questions:

  I read the new regs as permitting:  (i) publication of source code in
paper form (including publications reproduced on microfilm or on prerecorded
phonograph records), or in the form of a motion picture film and soundtrack
(section 734.3(b)(2)); and, separately, (ii) teaching or discussion of
information "about" cryptography (section 744.9).  The export of other
encryption materials (including the distribution to non-US persons of source
or object code on diskettes) is restricted, even if the materials are
publicly available "educational information" for release by instruction in
catalog courses and associated teaching laboratories of academic
institutions (section 734.9).

  Technical assistance activities that go beyond "mere" teaching or
discussion of information about cryptography are restricted, if they show
"intent" to aid a foreign person in the development or manufacture, outside
the United States, of controlled encryption commodities and software.  This
is a General Prohibition (see section 736.2(b)(7)(ii)).

  I think one question to be resolved is:  could the "mere" teaching about
cryptography (which is okay), *coupled* with distribution of source code in
paper form (which is otherwise okay because it is not, by itself, subject to
the EAR - see note to section 734.3(b)(2) and (b)(3)), be considered a
violation of the EAR because it demonstrates "intent" to aid a foreign
person in the development of encryption software?  One would hope not (see
Bernstein), but the new 734.9 seems to imply that such a combination may be
restricted.

   Thus, a potental First Amendment challenge to the new regs would be a
challenge to a restriction on teaching coupled with paper
publication/distribution of source code.  Another would be a challenge to
the restriction on non-paper publication/distribution, whether or not
coupled with teaching.

  - Richard Field

(For discussion purposes only.  Not legal advice or a legal opinion.)




On Mon, 20 Jan 1997 14:45:44 -0500 (EST) you wrote (to Declan McCullagh):
>
>What have the new crypto regs done to the "technical data" and the "public
>domain" exemptions from ITAR?
>
>The problem is this:  as I understand it, the Commerce Dept. regs exempt
>teaching and print presentations generally, but these exemptions do not
>apply to "encryption software."
>
>Does this mean that the exemptions do not apply to *teaching about*
>encryption software or *publications about* encryption software?  Or *only*
>that the exemptions do not apply to diskette-contained source code or object
>code.
>
>In other words, the new regs might completely decontrol teaching and
>publication of something like Professor Bernstein's Snuffle.
>
>On the other hand, the new regs might, like ITAR, restrict teaching and
>publication of Snuffle (as well as publication of source code in diskette
>format).
>
>The purpose of the question is to understand whether a First Amendment
>challenge to the new regs is a First Amendment challenge to a restriction on
>*teaching, publication, and program distribution* or just a challenge to a
>restriction on *program distribution.*
>
>
>Solveig Bernstein, Esq.
>(202) 789-5274
>(202) 842-3490 (fax)
>
>Assistant Director of Telecommunications & Technology Studies
>Cato Institute
>1000 Mass. Ave. NW
>Washington, DC 20001