From: "Peter D. Junger" <junger@pdj2-ra.F-REMOTE.CWRU.Edu>
Date: Sun, 14 Jul 1996 07:27:07 +0800
To: Cypherpunks <cypherpunks@toad.com>
Subject: Re: Can the inevitability of Software privacy be used to defeat the ITAR?
In-Reply-To: <Pine.SUN.3.94.960712211853.13922F-100000@viper.law.miami.edu>
Message-ID: <199607131808.OAA10339@pdj2-ra.F-REMOTE.CWRU.Edu>
MIME-Version: 1.0
Content-Type: text/plain


Michael Froomkin writes:

: 
: Hey folks, let's be real clear about this
: 
: 
: The ITAR do NOT apply to books.
: 
: Repeat
: 
: 
: The ITAR do NOT apply to books.

The only trouble with this claim is that it does not conform to the
language of the ITAR or with the whimsical practices of the Office of
Defense Trade Controls.  There is no exception for books, except for
those that are in the public domain because they are sold in book stores
and at newstands or are found in libraries, and the ODT insists that one
cannot put a book into the public domain by putting it into the public
domain or by selling it in a bookstore.

 
: State told Karn that it did not have jurisdiction over books.

Not quite.  They decided in their unreviewable discretion that they
would not exercise jurisdiction over a particular book, but such
decisions are made on a case by case basis, based on no established
criteria, and are without any precedental value.  In fact, in some of
the material filed in the Karn case the representative of the ODT said
that waiving jurisdiction over that book of software may have been a
mistake, and that in the future they might have to come to a different
decision.

In the Karn case the ODT did make a distinction between a book and a
CDrom; but that it what makes their decision nonsensical.  The only
problem was that the decision was held to be unreviewable.

: "The ITAR do not apply to books"

They do to.  (Unless one takes the position, which the ODT would not
agree with, that the ITAR do not apply to the means of communicating
information.)

That's why they violate the first amendment.

Or is the idea that they only apply to articles?  (That would
certainly give a new meaning to the phrase ``defense articles''.)

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