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

On Tue, 7 Nov 1995, Peter D. Junger wrote:

> 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.) >

[Note that this small disagreement between PDJ and me should not obscure 
our larger areas of agreement...]

To reiterate my point in legalese:  any court construing the ACEA would
inevitably read the prohibition on "exporting" to a foreign person as not
applying where the nation lacks jurisdiction.  This is not even a case of
applying a construction to save the constitutionality of the statute
(since it could well take a narrower construction to do that).  It's just
common sense, which courts actually resort to on occasion. 

In short, in this particular case the ACEA, and by extention the ITAR,
doesn't "say what it says"  it "says what it must mean".  This is an
important way in which legal parsing differs from compiling... 


I'd be interested in hearing more about why you say the ITAR violates
separation of powers: because it gives the executive branch too much power
to define the elements of a criminal offense? 

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.