From: Hal <hfinney@shell.portal.com>
Date: Wed, 1 Nov 1995 09:13:58 +0800
To: cypherpunks@toad.com
Subject: Re: CJR returned to sender
In-Reply-To: <199510312113.QAA16575@universe.digex.net>
Message-ID: <199511010030.QAA09462@jobe.shell.portal.com>
MIME-Version: 1.0
Content-Type: text/plain


Scott Brickner <sjb@universe.digex.net> writes:
>Dan Weinstein writes:
[unknown writes:]
>>>If anyone from MIT is reading this, it would be a real public service to 
>>>put on a web site (a) what the system used for the release of PGP is 
>>>exactly and (b) what assurances (oral, written, names & dates) was 
>>>received from State/Commerce that this was legal.
>>
>>You are assuming that because the government has chosen not to
>>prosecute MIT that they will not prosecute anyone else.  This is a
>>faulty assumption, laws are not invalidated if they are not enforced,
>>only if they are repealed or overturned.

>IANAL, but this seems implausible.  If MIT has received assurances
>(written or oral) from the DoJ that indicate that their scheme is
>adequate, then another organization prosecuted while following an
>identical scheme can admit this as evidence.

>There isn't, to my knowledge, a specific law which defines the act of
>export over the 'net.  The DoJ, in effect, determines the definition by
>their actions.  Failure to prosecute MIT should lead a responsible
>judge to dismiss actions against a subsequent defendant that follows
>the same practice.

It is also worth noting that the ITAR violation is worded somewhat
differently from some laws, requiring "willful" violation, a "specific
intent" to break the law.  In this situation, good faith efforts to apply
with what the law appears to be would seem to me to be a strong defense.
See <URL:http://www.portal.com/~hfinney/cryp_export1.html> for a writeup
I did on this a couple of years ago.  An excerpt, from U.S. v
Lizarraga-Lizarraga (541 F2d 826):

"Accordingly, we hold that in order for a defendant to be found guilty of
exporting under 22 U.S.C. 1934, the government must prove that the
defendant voluntarily and intentionally violated a known legal duty not
to export the proscribed articles, and the jury should be so instructed."

I am not a lawyer, however.  It would be interesting to hear what our
legal exports think of this argument.

Hal