1996-12-13 - ITAR -> EAR; loss of First Amendment Rights.

Header Data

From: “Peter Trei” <trei@process.com>
To: cypherpunks@toad.com
Message Hash: ba5dfd1320b937d7cd374d29a98f4a00f2d969e169d45fe486abaf120516be8c
Message ID: <199612131951.LAA03511@toad.com>
Reply To: N/A
UTC Datetime: 1996-12-13 19:51:50 UTC
Raw Date: Fri, 13 Dec 1996 11:51:50 -0800 (PST)

Raw message

From: "Peter Trei" <trei@process.com>
Date: Fri, 13 Dec 1996 11:51:50 -0800 (PST)
To: cypherpunks@toad.com
Subject: ITAR -> EAR; loss of First Amendment Rights.
Message-ID: <199612131951.LAA03511@toad.com>
MIME-Version: 1.0
Content-Type: text/plain

Reading the proposed new rules, what disturbs
me most deeply is the statement:

- start quote - 

16. Section 734.7 is amended by revising paragraph (b) to read as

734.7 Published information and software. 
                                          * * * * * 
(b) Software and information is published when it is available for
general distribution either for free or at a price that does not
exceed the cost of reproduction and distribution. See Supplement No. 1
to this part, Questions G(1) through G(3). Note that encryption
software controlled under ECCN 5D002 for "EI" reasons on the Commerce
Control List (refer to Supplement No. 1 to part 774 of the EAR) remain
subject to the EAR even when publicly available. Accordingly, such
encryption software in both source code and object code remains
subject to the EAR even if published in a book or any other writing or

- end quote - 

It appears that we will now have the unique
situation that a book which contains cryptographic
info or source code will be illegal to export or 
sell to a non-citizen, without getting export permission.

I am not aware of any prior time when the government
attempted to claim that printed material, freely
available in bookstores and newsstands to US citizens,
became contraband when sold or given to a non-citizen.

Who's responsible for enforcing this? The vendor? The
clerk at Barnes & Noble? The publisher? If the latter,
how many publishers will take the risk of printing 
books with crypto information? Will Wiley pull "Applied
Cryptography" from the shelves?

This doesn't just chill free speech, it dunks it in
liquid helium. It's difficult to think of clearer
case of prior restraint.


Peter Trei
Disclaimer: I am not speaking for my employer.