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

Michael Froomkin writes:

: 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.

I quite agree that no one can read the Arms Control Export Act as
authorizing the definition of export in the ITAR that requires, among
other things, that a foreign person get a license that the ACEA says
that he can't get, before discloing cryptographic software to another
foreign person ``in the United States or abroad''.

The ITAR violates not only the first amendment to the United States
Constitution, it also violates the separation of powers doctrine.  But
it still says what it says.  (And that is why it is unconstitutional.)

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