From: cme@acm.org (Carl Ellison)
Date: Tue, 9 Apr 1996 22:12:39 +0800
To: tcmay@got.net (Timothy C. May)
Subject: Re: Disclosure of Public Knowledge to Foreigners
Message-ID: <v02140b0fad8f98cb0085@[168.143.8.144]>
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At 05:33 4/3/96, Timothy C. May wrote:

>There is a reasonable chance the Supreme Court would see the overall
>absurdity of a situation where the knowledge is freely available to 200
>million adult Americans, with no restrictions whatsover on publication,
>discussion, etc., and yet uttering this knowledge in front of a foreigner
>is a crime.
>
>I don't think this would pass Constitutional muster, as the lawyers like
>to say.
>
>(The British at least have an Official Secrets Act. Much as I dislike that
>Act, at least they are more consistent in the sense of classifying things
>as being secret. How can the U.S. argue that knowledge available in any
>large library or bookstore to anyone who wants it, citizen or not, may not
>be "disclosed" to foreigners? If it's common knowledge, it's common
>knowledge!)

This assumes that the purpose of the ITAR restrictions is to keep a secret.
To the extent that the gov't argues that, they have no case as you point
out.

However, the ITAR is there specifically to frustrate US businesses if they
should want to sell or give away crypto overseas.  The rules, despite their
illogic, achieve that goal.

I would like to believe that the Supremes would rule that the Gov't has no
right to use what amounts to a secrecy provision just for harrassment --
but they might not.

I had Mike Nelson say to my face, 1.5 years ago, that he knows good crypto
is available to foreigners -- he just wants to make damn sure it doesn't
come in shrink-wrapped packages from US companies.  I can't judge the
constitutionality of that position but it holds together logically.
["don't let American products hurt American interests" the battle cry runs]

 - Carl


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