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Exporting software doesn't mean exporting (was: Re: lp ?)

"Perry E. Metzger" writes:

: "Peter D. Junger" writes:
: > "Perry E. Metzger" writes:
: > : It isn't clear that telecoms treaties don't implicitly make this legal
: > : in spite of the export regulations.
: > 
: > Once again, what the ITAR forbid is the disclosure of cryptographic
: > software to a foreign person within or without the United States, so
: > it does not make any difference whether the message containing the
: > code passes through the United States or not.
: I understand that you are a lawyer and I'm not, but it is my
: understanding that international treaties come in to play on this sort
: of thing. For instance, in international shipments, you can transship
: items and substances that are illegal to possess in a country through
: its ports provided that the materials do not originate or terminate
: their shipment in the country and remain sealed in their containers
: throughout. It is also my understanding that items like mail and phone
: calls that happen to transit a country are not necessarily subject to
: that nations laws provided that the nation is not a terminal point for
: the mail or call or what have you.

The trouble is that the ITAR's definition of export that is relevant
to cryptographic software has nothing to do with exporting in the
normal sense, and therefore it has nothing to do with transhipments.

The definition of export that is relevant simply makes it a felony to
disclose  technical data, which is defined as including cryptographic
software, to a foreign person within or without the United States.
Thus I cannot disclose my materials for my course in Computers and the
Law, which include some cryptographic software, to a Canadian student
in the United States without getting a license, event though there is
an exception which would allow me to export the software to Canada.

It doesn't make any difference whether the disclosure--or the message
that makes the disclosure possible--passes through a foreign
jurisdiction or not.  It is the disclosure, and only the disclosure,
that requires the license.  Not the transmission of the message.

Don't blame this on my being a lawyer; blame it on some very sick
people in the Office of Defense Trade Controls and in the NSA.

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet:  [email protected]    [email protected]