From: das@razor.engr.sgi.com (Anil Das)
Date: Fri, 2 May 1997 17:13:28 +0800
To: Tim May <cypherpunks@cyberpass.net
Subject: Re: "restrict technical assistance by U.S. persons with respect to encryption"
In-Reply-To: <tcmay@got.net>
Message-ID: <9705020135.ZM29118@razor.engr.sgi.com>
MIME-Version: 1.0
Content-Type: text/plain


Since I am going to quote portions of the EAR and make some comments
on it, let me begin by stating that I Am Not A Lawyer, and none of this
is to be taken as legal advice, or even accurate.

On May 1, 10:18pm, Tim May wrote:
> I hate it when people ask me to go dig up stuff...as I often end up wasting
> my time doing it, instead of telling them to use their own search tools.

	I didn't mean for you to do the search, Tim. I have spent
some time reading the EAR. For example, by reading the
relevant sections of the EAR and correlating it with the
Immigration and Naturlization Act, I figured out that
it would be illegal for somebody in the US to give me
encryption software, though it would be OK for them
to give the same code to a certain class of illegal
immigrants. During all this, I didn't come accross a section which
said that "hooks" or something similiar (used to be known as a DES
shaped hole), cannot be exported without a license. I was hoping
that some of the lawyers who frequent cypherpunk, whose job
it might to understand these regulations would be generous
enough to post a pointer.

> But it may have been worth it. While stupidly searching the EARs with my
> tools, I found this little gem:
> Sec. 730.5  Coverage of more than exports.
>
> * * * * *
>     (d) * * * The EAR also restrict technical assistance by U.S.
> persons with respect to encryption commodities or software.
>

	"Restrict", not prohibit.

	To atone for my sins, I decided to do some searching myself.

	This is actually expanded on in 744.9.

	736.2 (b)(7)(ii) (general prohibition seven) says:

    (ii) You may not, without a license from BXA, provide certain
technical assistance to foreign persons with respect to encryption
items, as described in Sec. 744.9 of the EAR.//

	And in 744.9.
// Sec. 744.9.  Restrictions on technical assistance by U.S.
persons with respect to encryption items.

    (a) General prohibition. No U.S. person may, without a license from
BXA, provide technical assistance (including training) to foreign
persons with the intent to aid a foreign person in the development or
manufacture outside the United States of encryption commodities and
software that, if of United States origin, would be controlled for
``EI'' reasons under ECCN 5A002 or 5D002.

	These ECCNs (whatever that means) is in http://jya.com/774-ccl05.htm.
5A002 is for hardware modules that do encryption functions. 5D002 applies
to software. I won't quote it here, but from my reading it lists
only software designed or modified for certain purposes, such as putting
it in a hardware module, for one.

	The general prohibitions in part 736 does not make any other
references to technical assistance, so I would think this is all
the restriction that is there, but as I said, IANAL, and I haven't
read the whole EAR.
>
> Anil, you'll have to do the research on where in the vast amount of stuff
> on the EARs, the Munitions List, the CCL, etc. this is spelled out. I'm
> done for the evening.

	Good night, Tim. Glad you could find something useful out of
all that wasted time, and glad I could do some searcing for you in return.

--
Anil Das