1993-06-28 - 1st Amendment vs. ITAR: bibliography

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From: gnu (John Gilmore)
To: cypherpunks@toad.com
Message Hash: 79514ba16045210adeaf0e06efda0a08c27a787fc11b0033e94f7099ddf2be3c
Message ID: <9306281610.AA15456@toad.com>
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UTC Datetime: 1993-06-28 16:10:48 UTC
Raw Date: Mon, 28 Jun 93 09:10:48 PDT

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From: gnu (John Gilmore)
Date: Mon, 28 Jun 93 09:10:48 PDT
To: cypherpunks@toad.com
Subject: 1st Amendment vs. ITAR:  bibliography
Message-ID: <9306281610.AA15456@toad.com>
MIME-Version: 1.0
Content-Type: text/plain

We sent this off to the State Dept. today.

				law office of
				  Lee Tien
			     1452 Curtis Street
			  Berkeley, California  94702
			     voice:  (510) 525-0817
			       fax:  (510) 525-3015

June 28, 1993

Clyde Bryant
Foreign Affairs Officer
Compliance Division
Bureau of Politico-Military Affairs
Office of Defense Trade Controls
U.S. Department of State
PM/ODTC SA-6 Rm. 200
Washington, DC  20522

Dear Mr. Bryant:

Mr. Dan Cook told my client, Mr. John Gilmore, that you and
the Compliance Division of the Office of Defense Trade Controls
are presently reviewing aspects of the International Traffic in
Arms Regulations (ITAR) with respect to First Amendment
questions.  My client volunteered to send some law review
articles in order that all relevant materials be available to you in
this review.

I am pleased to provide you with some materials which you
may find useful in your review.  They address First Amendment
and other constitutional issues raised by the Arms Export Control
Act, the ITAR, and the Export Administration Act.

We believe that information about cryptography, including
research papers, discussion of cryptographic algorithms, and
implementations in source-code form, is protected speech within
the meaning of the First Amendment.  We also believe that the
export controls of the ITAR violate the First Amendment
because they infringe the rights of cryptographers to speak and
publish freely.  The licensing procedure amounts to prior
restraint.  The laws and regulations are vague and overbroad.

I have enclosed the following materials:

1.	Ferguson, Scientific Inquiry and the First Amendment,
64 CORNELL L.REV. 639 (1979)

2.	Note, National Security Controls on the Dissemination
of Privately Generated Scientific Information, 30
U.C.L.A. L. REV. 405 (1982)

3.	Cheh, Government Control of Private Ideas -- Striking a
Balance Between Scientific Freedom and National
Security, 23 JURIMETRICS J. 1 (1982)

4.	Greenstein, National Security Controls on Scientific
Information, 23 JURIMETRICS J. 50 (1982)

5.	Alexander, Preserving High-Tech Secrets:  National
Security Controls on University Research and Teaching,
15 LAW & POL'Y IN INT'L BUS. 173 (1983)

6.	Wilson, National Security Control of Technological
Information, 25 JURIMETRICS J. 109 (1985)

7.	John Harmon, Assistant Attorney General, Office of
Legal Counsel, Department of Justice, Memorandum to
Dr. Frank Press, Science Advisor to the President, Re:
Constitutionality Under the First Amendment of ITAR
Restrictions on Public Cryptography (May 11, 1978).

This memorandum was reprinted in The Government's
Classification of Private Ideas:  Hearings before a Subcomm. of
the House Comm. on Government Operations, 96th Cong., 2d
Sess., 268-84 (1980).  These hearing transcripts were
accompanied by a House Report.  House Comm. on Gov't
Operations, The Government's Classification of Private Ideas,
H.R. REP. NO. 1540, 96TH CONG., 2D SESS. (1980).  We strongly
recommend that you read both the hearing transcripts and the
summary report.

We hope that these materials will assist you in formulating a
constitutional export control policy for scientific research in
general and for cryptography in particular.  Please do not hesitate
to contact me if you wish to engage in further exchanges.


Lee Tien
Attorney at Law
On behalf of Mr. John

cc:  Mr. Daniel Cook
     Mr. John Gilmore