NSA & State Fears ITAR Lawsuits

[tcmay@netcom.com (Timothy C. May)]

With the talk about Phil Karn's latest encounter with the ITAR
(International Trafficking in Arms Regulations) issue over Schneier's
source code diskette, I thought I'd pass on an interesting comment I
heard recently. 

Someone who's had dealings with the NSA and State over these issues
saw some memos, but was not allowed to make copies of them, which
indicated that State's lawyer's were very concerned that an ITAR case
involving software *not* ever reach the courts, because they felt the
government's case was very weak and that a probable loss would be a
serious setback in other areas.

Make of this what you wish, but I should note that Jim Bidzos or
someone like him (I just don't remember whom) at the 2nd RSA
Conference, January 1993, said something very similar to this. Namely,
that the government has generally avoided ITAR cases involving written
material and similar material because of the shaky Constitutional
basis. 

(Shipping a few packing crates full of mag tapes of weapons designs,
nuclear secrets, etc., would probably be prosecuted, but shipping a
couple of diskettes of C code, based on and essentially identical (no
matter what the letter to Phil K. says) to the code published in a
freely available book, sounds like precisely the kind of ITAR case the
governments fears the most.)

Note however, that I am not prepared to make myself a test case here!
Anybody who does so, should, in my opionion, be "judgement proof" (to
use Duncan Frissell's term). 

(Suing the government is less dangerous, but probably pointless....and
maybe not even possible. A "test case" would probably involved someone
very publically and very in-your-facedly exporting the diskettes and
then awaiting an ITAR prosecution. Which might never come...no
precedent would be established, the ITAR laws would not be changed.)

Just my opinion here, but I'm not sure this case is central to the
real issues. I applaud Phil for trying to get the diskettes ruled
exportable, but fighting a long legal battle is not necessarily a high
priority, as I see things.  (Usual caveats about people doing whatever
they want to do, about Cypherpunks not being an organized group and
hence can't have official projects, blah blah.)

Good luck!

--Tim May

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