From: Michael Froomkin <froomkin@law.miami.edu>
Date: Wed, 8 Nov 1995 04:24:27 +0800
To: "Peter D. Junger" <junger@pdj2-ra.F-REMOTE.CWRU.Edu>
Subject: Re: Exporting software doesn't mean exporting (was: Re: lp ?)
In-Reply-To: <m0tCtPg-0004JWC@pdj2-ra.F-REMOTE.CWRU.Edu>
Message-ID: <Pine.SUN.3.91.951107143034.22821C-100000@viper.law.miami.edu>
MIME-Version: 1.0
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[much trimmed in various places]

On Tue, 7 Nov 1995, Peter D. Junger wrote:

> Michael Froomkin writes:
> : 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

Technically, this is holding the regulations ultra vires, not 
unconsitutional; the difference matters.

> 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?
>
Note the change in fact pattern: now both foreigners are IN the US where 
indeed they are subject to US law.  My bet: the court has no trouble 
applying the ITAR to these facts and convicting.  I agree this is a 
little silly; but not silly enough to stop it.  [The government will 
argue, and win, as follows: suppose there is no law against murder in 
either of the nations they come from.  Does that mean they can kill each 
other here?]
 
> (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.)

This issue is now in front of two district judges.

> 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

Won't need it.  He has committed no offense.  If his petition is turned 
down, he has a right of action.

> hearing, isn't the government going to (i) argue that he was
> conspiring with some Americans--which would make him indistinguishable

Without evidence, they will lose.  Even with evidence, not obvious he has 
done anything wrong.

> 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''?)

They lose.  You distinguish it easily ("Now where exactly was the 
defendant at the time, Mr. US Atty?  Germany?  Case dismissed.")

> : 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

Ah. Terminological confusion.  That's not a constitutional violation.  
It's an agency misconstruing a statute, renderinig the regulations invalid.
See the Administrative Procedures Act....

> 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

It's too far off topic to pursue any further, but I must take exception 
to the suggestion that we are well served by separation of powers 
intruding into other legal domains.  Bowsher tells us that causation 
principles go out the window in SOP cases.  That alone makes it radioactive.

> 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).


A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm here.