From: "Peter D. Junger" <junger@pdj2-ra.F-REMOTE.CWRU.Edu>
Date: Thu, 26 Oct 1995 19:41:12 +0800
To: Cypherpunks <froomkin@law.miami.edu>
Subject: Re: CJR returned to sender
In-Reply-To: <Pine.SUN.3.91.951025100419.15559D-100000@viper.law.miami.edu>
Message-ID: <m0t8QPi-0004JWC@pdj2-ra.F-REMOTE.CWRU.Edu>
MIME-Version: 1.0
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Michael Froomkin writes:

: I agree strongly with Tim May that this (fun) little joke has gone far
: enough.  I enjoyed it while it lasted, but the CJR was clearly frivolous,
: the T-Shirt was clearly not a munition, IMHO, and that's that.  Write up
: the experience, post it on the web somewhere (I'll provide a space if you
: need it), and call it a day. 

I am afraid that I have to disagree with this.  The T-Shirt, or rather
the cryptographic software that is disclosed by the wearing of the
shirt, is just as much an item that falls within the ITAR's definition
of an item on the United States Munitions List as any other
cryptographic software.  The only way that wearing the T-Shirt without
a license from the censors in the Office of Defense Trade Controls
would _not_ be a violation of the ITAR would be if either (i) the
censors, in their totally arbitrary discretion issue a commodity
jurisdiction determination that the T-Shirt is not an item on the
United States Munitions List or (ii) the ITAR are determined to be
unconstitutional.

There is no exception in the ITAR for printed materials.  The fact
that in one case a book got a favorable commodity jurisdiction
determination and a CDrom did not is not evidence to the contrary, it
just shows how completely arbitrary the the ODTC's commodity
jurisdiction determinations are.  Nor is there an exception in the
ITAR for T-Shirts.

Of course the cryptographic software on the T-Shirt is constitutionally
protected, so it is not, in the constitutional sense, a violation of any
law to wear the shirt in the presence of a foreigner.  But then it
wouldn't be a violation--in the constitutional sense--for me to disclose
that cryptographic program to the foreigner who wrote it in a
communication over the internet.  And I assure you that when I have
discussed their encryption programs with foreign authors by e-mail I
have always been very careful not to disclose their own programs to
them.

It may not have much to do with cryptography, but it has everything to
do with the First Amendment to the United States Constitution, that
speech in any form, even on the backs of T-Shirts, is protected.
Remember there is a leading First Amendment case involving a T-Shirt
inscribed with the immortal words:  ``Fuck the Draft''.

Even if requiring one to obtain a license, or a non-obstat, from the
censors before communicating cryptographic software to foreign persons
by publishing that software were not to be held unconstitutional per
se, a licensing scheme that does provide any way to get a license for a
T-Shirt or a book is clearly unconstitutional.  The government cannot
refuse to license speech simply because the medium on which the speech
is affixed is frivolous.

And the message communicated by the T-Shirt is clearly political, so
arguably that message is _more_ protected by the First Amendment than
the PGP program on a floppy disk.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet:  junger@pdj2-ra.f-remote.cwru.edu    junger@samsara.law.cwru.edu