From: solman@MIT.EDU
Date: Sun, 29 Dec 1996 18:38:06 -0800 (PST)
To: gt@kdn0.attnet.or.jp (Gemini Thunder)
Subject: Re: New crypto regulations
In-Reply-To: <32cc13c3.83442324@kdn0.attnet.or.jp>
Message-ID: <9612300237.AA17923@ua.MIT.EDU>
MIME-Version: 1.0
Content-Type: text/plain


|> Concerning the new crypto regulations:

|> " Note to paragraphs (b)(2) and (b)(3) of this section: A printed
|> book or other printed material setting forth encryption source code
|> is not itself subject to the EAR (see Sec. 734.3(b)(2)). However,
|> notwithstanding Sec. 734.3(b)(2), encryption source code in
|> electronic form or media (e.g., computer diskette or CD ROM) remains
|> subject to the EAR (see Sec. 734.3(b)(3))."

|> This is a big question for me.  How does the fact that the same exact
|> information, when stored on magnetic media, cause it to lose its
|> freedom of press protection?

All media, all forms of expression are protected by the first amendment.
It's just that this protection is not absolute.

If the government wants to curtail freedom of speach it has to demonstrate
a compelling interest and further demonstrate that the means used are
narrowly tailored to achieve that compelling interest in the least
restricitve manner possible. Both have to be demonstrated to the courts'
satisfaction, a task quite different from (and, methinks, easier than)
demonstrating this to our own satisfaction.

These regulations explicitly say that you can transport printed information
including source code out of the country. No prior approval of any sort is
required. These regulations do not prohibit communication that requires
source code to be effective.

The government's claim is that in the interests of national security,
export of cryptography must be prevented. By limiting the policy's
applicability to media which are in, or can easily be converted to,
electronic form, the government has narrowly tailored this component
of the policy to prevent crytographic source code from appearing in
foreign computers without preventing the communication of that source code.

Cheers,

Jason W. Solinsky