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Re: Exporting software doesn't mean exporting (was: Re: lp ?)
I am delighted to discover that there is a person in this world who reads
the ITAR more broadly than I do. I can see how the ITAR could be read to
reach a Frenchman who sends crypto via email to a German that happens,
through no fault of his own, to be routed via New York; we might have to
talk about whether the scienter requirment would mean that M. Frenchman
knew or should have known about the routing. [NB "could be read" does
not equal "should be read".]
Not even I, however, would imagine that any court anywhere, could read
the ITAR or the legislation authorizing it (which is more to the point)
as reaching two foreigners talking abroad, neither of whom is a US person.
Not only does the US lack the jursidction to make such a rule, it has
never sought to make such a rule in any context I am aware of (no,
foreign wars don't count). Not even in anti-trust or securities,
where the extraterritorial jurisdictional assertions are premised on the
effects of the foreign act to the US market...
A. Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law |
U. Miami School of Law | [email protected]
P.O. Box 248087 | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm here.