From: jim bell <jimbell@pacifier.com>
Date: Tue, 24 Dec 1996 21:28:32 -0800 (PST)
To: Marc Horowitz <gbroiles@netbox.com>
Subject: Re: Reflections on the Bernstein ruling
Message-ID: <199612250528.VAA26575@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 01:01 PM 12/23/96 -0500, Marc Horowitz wrote:
>Greg Broiles <gbroiles@netbox.com> writes:

>>> It's also unclear that Judge Patel's ruling is enough to make export of
>>> crypto source legal by people/organizations located even in the Northern
>>> District of CA. Venue is proper, in an ITAR case, in any jurisdiction which
>>> the defense articles have moved through. (18 USC 3237(a); _US v. Durrani_
>>> 659 F.Supp 1177, 1182 (D. Conn, 1987); an easy analogy is to the _US v.
>>> Thomas_ "Amateur Action" case, where Tennessee venue was proper for
>>> prosecution of California defendants who sent porn into Tennessee.) So it's
>>> at least arguable that the feds could simply bring an ITAR prosecution in
>>> another district, if exported crypto flowed through that district. (But I
>>> don't think they can do so against Dan Bernstein because of "res judicata",
>>> a doctrine which says that once two parties have fully litigated an issue,
>>> they cannot come back to the same court - or a different one - and ask to
>>> relitigate the same issue.) 
>
>It happens to be the case that the Northern District of California
>borders on the Pacific Ocean, and includes (at least) two airports
>with direct flights to more crypto-friendly jurisdictions to the west.
>I do not know if there are any satellite or oceanic cables similarly
>situated, but I wouldn't be surprised.

In law, there's a concept known as "mens rea," or "guilty mind."  (A Real 
Lawyer (tm) should be able to explain this to CP)    Presumably, if the 
legal system followed its own rules, it would be impossible to have a 
"guilty mind" about exporting crypto subsequent to the Patel ruling, until 
such time as that ruling was specifically overturned.  After all, the lay 
public is not expected to be experts here, and if a judge (!) says that 
crypto export regulations are a violation of the US Constitution, we should 
be entitled to believe her and to believe that we're entitled to disobey the 
(unconstitutional) law with a clear conscience.

Further, IMO, It shouldn't even matter if contrary legal decisions exist, as long as 
they are not directly above that court so as to overrule Judge Patel. Our 
consciences can still be clear:  If courts can't, themselves, agree, 
presumably we aren't obligated to second-guess which one is correct and 
which one is not.

However, a REAL LAWYER would also have to tell you that the system doesn't 
obey its own rules!
 

Jim Bell
jimbell@pacifier.com