From: "Peter D. Junger" <junger@pdj2-ra.F-REMOTE.CWRU.Edu>
Date: Mon, 22 Jan 96 03:38:38 PST
To: Cypherpunks <perry@piermont.com
Subject: Re: ITAR and hash functions (Perry's question)
In-Reply-To: <199601201534.KAA03043@jekyll.piermont.com>
Message-ID: <m0teKcP-0004LiC@pdj2-ra.F-REMOTE.CWRU.Edu>
MIME-Version: 1.0
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"Perry E. Metzger" writes:

: 
: Phil Karn writes:
: > Perry quoted part of the joint declaration of facts in my case and asked
: > 
: > >Would this not mean that the government is estopped from ever again
: > >claiming that hash functions are export controlled under the ITAR?
: > 
: > Not according to them.
: 
: Yeah, I know not according to them. Thats not what counts. 

But that is what counts initially

: I'd like to
: know what a lawyer thinks. Once they have declared that something
: doesn't fit the munitions criteria I suspect they are estopped from
: ever claiming again that it is munitions -- basic legal
: principle. Sure, they can claim otherwise, but they aren't forbidden
: by law from asserting their power to make buildings levitate, either.
 
In general, the doctrine of estoppel is not applied against
governmental agencies.  To the extent that an agency is purportedly
making decisions as to what the law is, it may or may not be bound by
its earlier decisions, but it usually won't be.  And it is not bound
by its factual determinations.

: > Furthermore, they repeatedly assert that under the power delegated to
: > them by the President, they have the absolute power to add and delete
: > items from the Munitions List and to make inexplicable, inconsistent
: > and arbitrary rulings whenever they damn well feel like it, and no
: > court can overrule them.
: 
: They can claim that they have the right to declare fingernail clippers
: to be munitions, but that certainly couldn't stand up in court.

That would stand up in court and in any case the statute that is the
basis for the ITAR says that the determination that
something--including fingernail clippers--is on the Munitions Lists is
not reviewable by the courts.  (And a court held before that provision
was passed that the question of whether commercial television
descramblers were properly on the munitions list, as cryptographic
devices, was a political question that could not be reviewed by the
court.  And that was, as I recall, a criminal case.)

: > So the bottom line is this: at the moment the ODTC will let you export
: > hash functions as long as they don't encrypt data. They'll probably
: > grant CJ requests to that effect. But they could change their minds at
: > any time if they feel like it.
: > 
: > Isn't it wonderful to live under a government of laws, not of men?

I am convinced that most, if not all, the restrictions in the ITAR on
disclosing cryptographic software will be struck down by the courts as
being unconstitutional under the first amendment, but it will not be
an easy process.  There are all sorts of constitutional provisions
that are violated every day and though some of these violations will
be overturned by courts, if and only if someone like Phil Karn
challenges them in court, but the wheels of the law grind slowly.

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