From: "Peter D. Junger" <junger@pdj2-ra.F-REMOTE.CWRU.Edu>
Date: Wed, 8 Nov 1995 04:56:20 +0800
To: Cypherpunks <cypherpunks@toad.com>
Subject: Re: Exporting software doesn't mean exporting (was: Re: lp ?)
In-Reply-To: <Pine.SUN.3.91.951107120300.21752H-100000@viper.law.miami.edu>
Message-ID: <m0tCtPg-0004JWC@pdj2-ra.F-REMOTE.CWRU.Edu>
MIME-Version: 1.0
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Michael Froomkin writes:

: On Tue, 7 Nov 1995, Peter D. Junger wrote:
: 
: > I quite agree that no one can read the Arms Control Export Act as 
: >authorizing the definition of export in the ITAR that requires, among 
: >other things, that a foreign person get a license that the ACEA says 
: >that he can't get, before discloing cryptographic software to another 
: >foreign person ``in the United States or abroad''. 
: > 
: > The ITAR violates not only the first amendment to the United States 
: > Constitution, it also violates the separation of powers doctrine.  But 
: > it still says what it says.  (And that is why it is unconstitutional.) >
: 
: [Note that this small disagreement between PDJ and me should not obscure 
: our larger areas of agreement...]
: 
: To reiterate my point in legalese:  any court construing the ACEA would
: inevitably read the prohibition on "exporting" to a foreign person as not
: applying where the nation lacks jurisdiction.  This is not even a case of
: applying a construction to save the constitutionality of the statute
: (since it could well take a narrower construction to do that).  It's just
: common sense, which courts actually resort to on occasion. 

I would admit that a court might do this in an effort to hold the
statute constitutional, but a court might also hold the regulations
unconstitutional because they are overbroad.  Remember, the first
amendment is the one area where one has standing to raise facial
constitutonal claims even though one's own constitutional rights are
not infringed.  Consider the case where a foreigner in the United
States discloses to another foreigner, and is then prosecuted.
Couldn't he raise the point in his defense?

(But of course the ITAR as applied to cryptographic software--and that
is all that I am talking about--are so unconstitutional in so many
different ways that nothing is going to turn on that one issue.)

But the real problem--to the extent that there is a real problem--is a
more practical one.  What happens when some foreign person who has set
up a large on-line archive of cryptographic software, in part just to
twit the Americans, tries to immigrate to the United States?  If he is
excluded because he violated the export control laws, is he even going
to get a court hearing?  And if by some miracle he does get a court
hearing, isn't the government going to (i) argue that he was
conspiring with some Americans--which would make him indistinguishable
from Noriega--and (ii) argue that he has to be covered, because one cannot
distinguish his case from that of a foreign person who disclosed
cryptographic software within the United States to another foreign
person.  (Remember, the regulation says ``within the United States or
abroad''?)
 
: In short, in this particular case the ACEA, and by extention the ITAR,
: doesn't "say what it says"  it "says what it must mean".  This is an
: important way in which legal parsing differs from compiling... 
 
: ,,,,,
: 
: I'd be interested in hearing more about why you say the ITAR violates
: separation of powers: because it gives the executive branch too much power
: to define the elements of a criminal offense? 


Not that.  My point most simply is that the AECA does not say what the
ITAR says, and that that is why the language of the ITAR violates the
doctrine of separation of powers.  Your argument--as I understand
it--is that the courts will not construe the ACEA as authorizing the
weird and unconstitutional definitions in the ITAR.  My point is that 
the ACEA doesn't authorize the ITAR and that therefore the ITAR is
unenforceable on separation of powers grounds.

I wrote an article about this twenty-five years ago arguing that the
Pentagon Papers case can best be explained as a separation of powers
case.  In the opinions in that case, Near v. Minnesotta was the most
cited case, but Youngstown Sheet and Tube v. Sawyer came in a close
second.  My conclusion was that when a court is confronted with a hard
constitutional issue, the better part of valor is to decide the case on
separation of powers grounds, if possible.  In Pentagon Papers there was
no congressional authority for the injunction sought; in the case of the
ITAR there is no congressional authority for the definition of export as
it applies to software (as opposed to hardware).

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