Re: A lengthy preliminary analysis of the Leahy bill.

[Hal <hfinney@shell.portal.com>]

From: "Peter D. Junger" <junger@pdj2-ra.F-REMOTE.CWRU.Edu>
> From the point of view of one who is concerned with first amendment
> rights rather than selling cryptographic software as a commodity, the
> really unfortunate part is that this provision authorizes export
> contols on ``software''.  Now the Leahy bill does not define software,
> but there is a definition of lying around in the International Traffic
> in Arms Regulations (``ITAR'') that I fear Commerce might adopt---it
> may even be the language that the draftsmen of the Leahy bill had in
> mind.  And this definition of ``software'' includes a great deal of
> material that cannot constitutionally be controlled.  Here is that
> definition from the ITAR \S 121,8(f): ``Software includes but is not
> limited to the system functional design, logic flow, algorithms,
> application programs, operating systems and support software for
> design, implementation, test, operation, diagnosis and repair.''
> [...]
> Even if that definition is adopted, the fact remains that software is
> still nothing but information, and that it is the communication of
> information that is protectected by the first amendment to the United
> States constitution.  (If you aren't convinced that software is
> protected by the first amendment, notice that software is
> copyrightable as a ``literary work''.)  Note that the paradigmatic
> violation of the first amendment is a scheme under which the
> government requires publishers to obtain a license before publishing.

Are you familiar with the Posey case?  That decision by the 9th district
court (which oversees export cases) explicitly rejected the contention
that restrictions on export of written materials violate the First
Amendment.  Although I am not a lawyer, I wrote some notes on this case at:
<URL: http://www.portal.com/~hfinney/cryp_export2.html>.

Below is an excerpt from that court decision in which they make it quite
clear that the First Amendment doesn't apply.  In this case, the item
being exported was a technical manual obtained from the US government
itself under the Freedom of Information Act.  Surely this is even closer
to what the framers of the constitution had in mind when they conceived
of the First Amendment, yet the constitutionality of restrictions on its
export has been upheld.  So you should be aware that the status quo is
that the restrictions you fear being legitimized by the Leahy bill are
already in place.

Here is part of the Posey decision [864 F2d 1487] (the AECA is the Arms
Export Control Act, which is what currently forbids the export of
encryption devices, and the CAAA is the Comprehensive Anti-Apartheid Act,
which applied specifically to South Africa, where the materials in this
case were sent):

    VII. FIRST AMENDMENT

    Appellant's final argument is that the First Amendment bars the
    government from restricting the export of information that is already
    available to the public.  He insists that the data he sent abroad
    was available under the Freedom of Information Act, and therefore
    could be legally obtained by virtually everyone in the world.  He contends
    that the First Amendment prohibits the application of the AECA and
    CAAA to the export of such publicly available information.

    Our Court has already considered and rejected this argument.  In
    United States v. Edler Industries, 579 F2d 516 (9th Cir. 1978), we
    rejected an essentially identical challenge to the predecessor of the
    AECA.  The defendant was convicted of exporting certain manufacturing
    designs that were on the Munitions List but were not classified.  He
    challenged his conviction on First Amendment grounds, arguing that the
    government could not constitutionally prohibit the export of techno-
    logical data that was widely distributed within the United States.  In
    rejecting that claim, we explained that even assuming that the First
    Amendment offers some protection to the dissemination of technical data,
    the government has a strong interest in regulating the export of
    military information:

      The federal government undeniably possesses the power to regulate the
      international arms traffic....  As a necessary incident to the power
      to control arms export, the President is empowered to control the
      flow of information concerning the production and use of arms.  The
      authority to regulate arms traffic would be of negligible practical
      value if it encompassed only the exportation of particular military
      equipment but not the exportation of blueprints specifying the
      construction of the very same equipment.
    
    579 F2d at 520.  We accordingly concluded that the government could
    permissibly restrict the flow abroad of data included in the Munitions
    List.  579 F2d at 521.  Finally, we held that the government's power
    to issue such restrictions was not affected by the domestic availability
    of the regulated data:

      Given the unquestionable legitimacy of the national interest in
      restricting the dissemination of military information, the claim of
      public availability in the United States is not a defense recognized
      by the Constitution.
    
    579 F2d at 522.

    Appellant attempts to distinguish Edler from the present case by pointing
    out that the exported data in Edler was "cutting edge" technology and
    was not widely used in this country.  [Citation].  Whether or
    not this was factually true of the technology at issue in Edler, however,
    the Edler decision clearly assumed for purposes of its decision that
    the material was extensively available in the United States.  See 579
    F2d at 518, 522.

    Moreover, we believe Edler should not be read as permitting the govern-
    ment to restrict the export of only that information which is not
    widely available domestically.  Under appellant's reading of Edler,
    if the government wished to prevent technical data from being sent to
    foreign powers, it would be required to suppress the information alto-
    gether, at home as well as abroad.  This outcome would blur the fact
    that national security concerns may be more sharply implicated by the
    export abroad of military data than by the domestic disclosure of such
    data.  Technical data that is relatively harmless and even socially val-
    uable when available domestically may, when sent abroad, pose unique
    threats to national security.  It would hardly serve First Amendment
    values to compel the government to purge the public libraries of every
    scrap of data whose export abroad it deemed for security reasons
    necessary to prohibit.  We conclude that appellant's conviction does
    not violate the First Amendment.