From: John Gilmore <gnu@toad.com>
Date: Thu, 21 Sep 95 00:37:26 PDT
To: iang@cs.berkeley.edu
Subject: Export via FTP: who's to blame?  Ask a court!
In-Reply-To: <43qvn4$mm@calum.csclub.uwaterloo.ca>
Message-ID: <9509210737.AA10902@toad.com>
MIME-Version: 1.0
Content-Type: text/plain


> (ITAR yadda), but even so, if JRFurriner downloads
> crypto from company C's site in the US, who's guilty of ITAR-violation?
> Company C for making it available, or JRF for initiating the action
> that caused the bits to be send out of the country?

This is a question that has never been answered by a court.

Personally I think that the Congress can't constitutionally set up a
scheme that restricts US citizens from communicating with each other
to transfer software.  Even if it makes it harder to catch foreigners
who break the law.  Prior restraints on US citizens' communications
can only be done if they are "incidental" to a greater government
purpose.  When their purpose is to restrain the act of communication
itself, they lose.  It's even clear that they can't prevent US
citizens from communicating with foreigners, so the entire crypto
software export regime may be unconstitutional.  The more research we
do on the First Amendment law, the more it looks this way to me.

If some hardy soul wants to set up a nice clean situation, like Phil
Karn did for the paper-vs-magnetic-media distinction, I'm sure we can
find some more pro-bono (zero cost) lawyers who'll take the case for
the fun and notoriety.  You don't have to break the law to get into
court; Phil didn't, for example.  You make a situation where the law
restricts you, then sue to have the restriction declared invalid.  And
if you have ever been in court, it's a lot more fun being the
Plaintiff than being the Defendant.

Doing this will take significant time on your part.  Even if the
lawyers do 95% of the work, you have to talk with them, review what
they write, explain the details in gory detail, and believe in what
they're doing for you.  And sometimes do things in a way that they are
sure is right, even though you yourself aren't sure.  And stick with
the case even though it would drag on for years through several
courts.  So it's not something to do lightly.  But it's worth it.  And
it's a lot safer and easier to enforce your civil rights now, than to
try to live through the civil war that would follow the slide into
authoritarian government.

I'd do this case myself, except that I think we should have few single
points of failure.  If we spread the work around, it's more likely to
happen.  And your civil rights are safer, because you yourself have
learned how to defend them.

	John