From: Hal <hfinney@shell.portal.com>
Date: Thu, 9 Nov 1995 23:44:42 +0800
To: cypherpunks@toad.com
Subject: Re: Pegasus Mail
In-Reply-To: <9511091252.AA04699@sulphur.osf.org>
Message-ID: <199511091528.HAA05703@jobe.shell.portal.com>
MIME-Version: 1.0
Content-Type: text/plain


Rich Salz <rsalz@osf.org> writes:

>I sure hope some tells David Harris that his program is now export
>controlled.  From my reading of his message, it seemed like he thinks he
>"beat the system" because he didn't include actual crypto code.

Even if he were in the US, I would hope that no one told him that.  One
of the elements of the offense of violating the arms export control act
is that the violation be willful.  The exporter has to violate a known
legal duty not to export the item.  One of the reasons for this is simply
that the ITAR list is long and technical and average individuals cannot be
expected to know all its details.  This is mentioned in the Lizarraga
case, at approximately 541 F2d 828:

"Two features of 22 USC 1934 strongly indicate that Congress used the
term 'willful' to require a showing of specific intent.  First, the
statute prohibits exportation of items listed by administrative
regulation, not by the statute itself.  Second, upon referring to the
pertinent regulation, 22 CFR part 121, we find that the regulation
contains an exhaustive list of items including amphibious vehicles,
pressure-breathing suits, aerial cameras, 'privacy devices,' and
concealment equipment (including paints).  Unlike those substances which
are known generally to be controlled by government regulation, such as
heroin or like drugs, these items might be exported or imported
innocently.  Under such circumstances, it appears likely that Congress
would have wanted to require a voluntary, intentional violation of a
known legal duty not to export such items before predicating criminal
liability."

So in this case I think widespread publicity about the ITARs can be
considered harmful.  All those helpful people going around warning others
that they are exporting software are actually removing a defense against
charges of export.

Hal