From: Greg Broiles <gbroiles@netbox.com>
Date: Thu, 6 Mar 1997 21:10:57 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: The Pro-CODE Bill could make things worse!
Message-ID: <3.0.32.19970306211056.006e7930@mail.io.com>
MIME-Version: 1.0
Content-Type: text/plain


At 07:30 AM 3/6/97 -0500, Bill Stewart wrote:
>At 06:44 AM 3/5/97 -0800, Greg Broiles wrote:
> >"Exports. The publisher or manufacturer of computer software or
> >hardware with encryption capabilities shall disclose (for reporting
> >purposes only) within 30 days after export to the Secretary such
> >information regarding a program's or product's encryption capabilities
> >as would be required for an individual license to export that program
> >or product."
> 
> Can it be construed as a "taking"?

The usual "takings" rule is that property must be rendered [virtually]
worthless by regulations/legislation, not just burdened, in order for
government to have effected a "taking". So it's hard to say that burdening
the use/sale of crypto constitutes a taking. And I think it'd be hard to
say that the mandatory reporting is a "taking" of information, mostly
because (modulo trade secret) it's neither unusual nor illegal for the
government to require other information disclosures, without compensation
and for the government's own nefarious purposes. (See, e.g., tax forms,
business registrations, SEC filings, various real/personal property
tracking schemes.) Also, that "taking" does not destroy the information or
render it worthless. 

Which is not to say that I like the rule (I don't), but I don't think that
a court will see a "taking" here.

I'm also unclear about the power of the Information Security Board to
subpoena unwilling witnesses/representatives to testify before it. I don't
know what, if any, subpoena power is available to the executive branch. All
of the easy examples of subpoenas/compelled testimony I can call to mind
take place in a judicial or legislative setting. I'm going to read more
about this and see if I can find anything interesting. 

> What restrictions are there on government use of this information apply?

The general rule is that where the information is otherwise
confidential/proprietary, the government must or will maintain that status.
This is one argument against making the meetings of the review board open
to the public; if they force you to disclose your trade secrets to a small
group of people who are legally obligated to keep them secret, that's one
thing - but if they force you to disclose your trade secrets on the public
record or in an open meeting, that's another. (And that might be a taking,
because trade secret status would be lost, e.g., the trade secret is
destroyed/valueless.) 

> State governments, e.g. California, have a history of ripping off
> copyright and refusing to accept lawsuits against themselves -
> can the Feds do the same?

Hmm. Dunno if the Federal Tort Claims Act allows copyright suits or not. 

> Maybe they can't refuse to let you export
> any more, but can they threaten to publish your source code on
> http://www.dockmaster.mil/warez/ if you don't do what they want?....

Umm. My gut feeling is "no", but public disclosure of information is a
prerequisite to other useful privileges (e.g., patent and copyright
registration/protection) so I'm reluctant to say that the answer is clearly
no. Perhaps other readers have a better background in this area and can
respond more authoritatively.


--
Greg Broiles                | US crypto export control policy in a nutshell:
gbroiles@netbox.com         | 
http://www.io.com/~gbroiles | Export jobs, not crypto.