Re: Reflections on the Bernstein ruling

[jim bell <jimbell@pacifier.com>]

At 11:57 PM 12/20/96 -0800, Greg Broiles wrote:
>
>(Please keep in mind that I'm not a lawyer yet, and that my comments are
>intended only as the reflections of an amateur and are intended as
>discussion fodder, not legal advice.)
>
>Folks seem to be very excited about Judge Patel's ruling in the Bernstein
>case - and with good reason. It was, for example, a first-page
>above-the-fold item in both of the Bay Area's legal newspapers today.
>Unfortunately, most of the media reports have done a poor job of
>interpreting the ruling, and it's easy to draw bad conclusions from erratic
>news reports about the case. The decision is available online
><http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/961206.decision>
>thanks to the folks at EFF. I thought list members might appreciate a
>summary of the decision and its potential effects.


Please comment on my (layman's) proposal that no "mens rea" ("guilty mind") can be 
attributed to a person who is relying on a not-yet-overturned judicial 
decision.  In other words, if a person has a genuine belief that what he's 
doing has been upheld by the Patel ruling, he cannot be claimed to have had 
"mens rea."  (I am presuming, here, that before he does anything, he "clears 
it" with a lawyer who assures him that what he's planning is at least 
covered in the Patel decision as being okay.  I understand, of course, that 
"mens rea" may be irrelevant in CIVIL REGULATORY issues, but not in CRIMINAL ones.)

>1. What the ruling said
>In brief, Judge Patel ruled that Category XIII(b) (the category which
>refers to cryptographic equipment/software) is unconstitutional because it
>functions as a prior restraint upon speech without providing important
>procedural safeguards which are required when a prior restraint scheme is
>put into place. She ruled that the "technical data" provision of the ITAR
>is also unconstitutional when it refers to technical data about Category
>XIII(b) items because of the lack of procedural safeguards.
>
>Mopping up other points raised by the suit, Judge Patel ruled that the term
>"defense article" as defined in 22 CFR 120.6 should be read to elide the
>phrase "or technical data"; and that when interpreted that way, the terms
>"defense article", "defense service", and "technical data" are not
>unconstitutionally vague. She also ruled that the term "export" is not
>unconstitutionally vague, and writes (in 'dicta', which is legalese for
>"offhand comment", e.g., without precedential value but interesting as a
>hint re what's going on in the judge's mind) that placing software on an
>"Internet site" which can be accessed from a foreign country is an export
>for ITAR purposes.

What about leaving a floppy on a sidewalk in Des Moines, Iowa, which might 
be picked up by a wandering foreign tourist who happened nearby?

Sheesh, these judges are real idiots, even when they accidently are coming 
to (mostly) the right conclusion.

However, if being "on the Internet" is automatically presumed to be an 
export, why can't we program using remote-control editors which might, 
someday, be available on the Internet?  (maybe they already are; somewhat 
analogous to the old timesharing computers of yore.  If the underlying files 
were kept overseas, modified by specific editing commands sent to a remote 
system, presumably Patel's dicta would suggest that those files were never 
"exported" per se.  They were formed and kept overseas, INTENTIONALLY, to 
avoid the later necessity of exporting them had they been kept in the US.)  
This would be an modifed and automated version of the way versions of PGP 
later than 1.0 were supposed to have been developed:  Actual coding was done 
overseas, based on suggestions and comments from other countries.  
(including, presumably, the US.)

Yes, realize that pessimism overtakes me here.  "The system" never wants to 
admit a contradiction.  I would argue, however, that whereever the system 
wishes to draw the line and call everything outside the line "an export," 
that decision should be considered binding on the government even when such 
a conclusion leads to unexpected and undesireable consequences.  (for the 
government, at least...)


>She also ruled that the "fundamental research in science and engineering"
>(120.11(8)) and "general scientific, mathematical, or engineering
>principles" (120.10(5)) exceptions to the definition of "technical data"
>are void because they are too vague. As far as I can tell, they are thus no
>longer available to potential ITAR defendants.

Wouldn't it be more accurate to say that they are no longer considered 
precisely defined exceptions, NOT that the exceptions no longer exist?  

It seems to me that if the "burden of non-ambiguity" falls on those writing 
the regulations, failure to eliminate ambiguity would have to be resolved in 
favor of tolerating actions that fall into the grey area.  For example, if a 
law was passed that said, "pornographic writing is illegal," and the SC 
later determined that "pornographic" was ambiguously defined, what they 
WOULDN'T do is to make ALL writing illegal!  (which would, obviously, be an 
over-broad restriction, in an of itself.)  Otherwise, what would on the 
surface appear to be a overturning of a law would actually be a _broadening_ 
of it.  

>It's also unclear that Judge Patel's ruling is enough to make export of
>crypto source legal by people/organizations located even in the Northern
>District of CA. Venue is proper, in an ITAR case, in any jurisdiction which
>the defense articles have moved through. (18 USC 3237(a); _US v. Durrani_
>659 F.Supp 1177, 1182 (D. Conn, 1987); an easy analogy is to the _US v.
>Thomas_ "Amateur Action" case, where Tennessee venue was proper for
>prosecution of California defendants who sent porn into Tennessee.) So it's
>at least arguable that the feds could simply bring an ITAR prosecution in
>another district, if exported crypto flowed through that district. 


But again, deal with the mens rea issue.  If Patel said, "It's okay to 
export this software because the regulation is invalid," and you do so 
relying on this ruling, wouldn't any subsequent (criminal)  prosecution both 
have to prove you did it, and ALSO prove that you were being unreasonable in 
relying on the ruling?  (Are rulings of illegality somehow more "reasonable" 
than rulings of legality?)

I'm not suggesting that her decision can't be overturned in the future; I'm 
suggesting that until it is overturned, each member the public is entitled 
to act in reliance on it, perhaps at least the ones in her jurisdiction.


>So while the ruling has considerable historical, cultural, and symbolic
>significance, it's dangerous to assume that it means that export
>restrictions on crypto are dead.

However, wouldn't it be a good idea to take advantage of what is at least a 
temporary decision?  If I were a large corporation, having just developed an 
excellent design for a crypto telephone, I might want to export it NOW, 
which is in effect taking advantage of a temporary loosening of restrictions.


Jim Bell
jimbell@pacifier.com