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1995-11-07 - Re: Exporting software doesn’t mean exporting (was: Re: lp ?)

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From: hallam@w3.org
To: Michael Froomkin <froomkin@law.miami.edu>
Message Hash: 803e5b9b64c9ae5d85814e23963441a3c63034d7b0c5b3a43327a095d3763d39
Message ID: <9511072043.AA12971@zorch.w3.org>
Reply To: <Pine.SUN.3.91.951107143034.22821C-100000@viper.law.miami.edu>
UTC Datetime: 1995-11-07 21:37:44 UTC
Raw Date: Wed, 8 Nov 1995 05:37:44 +0800

Raw message

From: hallam@w3.org
Date: Wed, 8 Nov 1995 05:37:44 +0800
To: Michael Froomkin <froomkin@law.miami.edu>
Subject: Re: Exporting software doesn't mean exporting (was: Re: lp ?)
In-Reply-To: <Pine.SUN.3.91.951107143034.22821C-100000@viper.law.miami.edu>
Message-ID: <9511072043.AA12971@zorch.w3.org>
MIME-Version: 1.0
Content-Type: text/plain



>> 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.

I thought Peter was arguing that the separation of powers would be
affected? Surely this would be a constitutional question?

On the strict ultra-vires question and enforcement on non US citizens
may I sugest two hypotheticals?

Hyptotheical A:

I develop a crypoto system in Geneva and pass the source code to my
co-worker. Neither of us have export certificates.

Hypothetical B:

I set up an anonymous FTP site to recieve PGP from abroad. It arrives 
and I hand it over to Fred who has agreed to distribute any material.


It seems to me that in Hypothetical B I am certainly acting in a manner 
which a US court might consider to be something the US government might
seek to prevent. Effectively I would be trafficing. The fact that I only 
hand the goods over to non-US citizens would appear to be irrelevant.

Defining the precise distinction between what is covered and what is 
not is difficult. It is easier to draw the boundaries broadly and let 
the courts decide what is clearly outside the scope. it is not 
necessarily in the governments interests to have sharply defined lines


		Phill

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