From: tcmay@got.net (Timothy C. May)
Date: Thu, 28 Mar 1996 11:58:21 +0800
To: cypherpunks@toad.com
Subject: Why NSA is afraid that ITARs will be thrown out in court
Message-ID: <ad7cd9f50d021004b7ef@[205.199.118.202]>
MIME-Version: 1.0
Content-Type: text/plain


At 4:45 AM 3/26/96, jamesd@echeque.com wrote:
>At 12:23 PM 3/25/96 -0800, Timothy C. May wrote:
>> Besides, I think the best way to overturn the
>> ITARs is through a court challenge; as I have noted, even the NSA's lawyers
>> felt that the ITARs would not withstand court scrutiny.
>
>Note that the spooks have carefully avoided a full bore court
>showdown.  They harassed Phil until the statute of limitations
>caught up with them, but never brought it to trial.  If we had
>no further legislation, and the courts broke ITAR, we would
>be home free.  No plausible legislation could give us that.

Someone said he had missed my reference to this, and wanted to know more.
So, I'll also pass it on here again.

In the summer of 1994 I got a call from Carl Nicolai, the inventor of the
"PhasorPhone," an audio-scrambling phone that was suppressed with a Patent
Secrecy Order (ordered by the NSA). This was around 1980-81, and is covered
in Bamford. He told me a bunch of things, including this:

Carl and his lawyer got access to papers inside the NSA building, though
they could not make copies. They found memos from NSA staffers saying that
the ITARs had never been tested in court and would not likely survive a
full Constitutional test and that it would thus be best if court cases were
avoided.

I passed this information along (if memory serves) to Lee Tien,
representing Gilmore in various cases, and to Phil Karn. (One of them, I
don't recall which, posted a message a while later saying that such
documents had been found....I don't recall the details, but this was
probably around fall of 1994.)

Whether this NSA paranoia has anything to do with the final decision on the
Zimmermann et. al. matter is unclear, but it is likely that a very strong
challenge to the ITARs--maybe the appeal by Phil Karn is such a challenge,
maybe the Bernstein case--will result in big chunks of the ITARs being
thrown out.

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
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