From: "Peter D. Junger" <junger@upaya.multiverse.com>
Date: Thu, 18 Sep 1997 16:42:38 +0800
To: Carl Ellison <cme@cybercash.com>
Subject: Re: National Security Committee amendments to SAFE
In-Reply-To: <3.0.3.32.19970917161510.03264cb0@cybercash.com>
Message-ID: <199709180834.EAA32547@upaya.multiverse.com>
MIME-Version: 1.0
Content-Type: text/plain



Carl Ellison writes:

: >SEC 3. EXPORTS OF ENCRYPTION.
: >	(a) EXPORT CONTROL OF ENCRYPTION PRODUCTS NOT CONTROLLED ON THE UNITED
: >STATES MUNITIONS LIST. - The Secretary of Commerce, with the concurrence of
: >the Secretary of Defense, shall have the authority to control the export of
: >encryption products not controlled on the United States Munitions List.
: >Decisions made by the Secretary of Commerce with the concurrence of the
: >Secretary of Defense with respect to exports of encryption products under
: >this section shall not be subject to judicial review.
: 
: I take it this last sentence is intended to kill Bernstein, Karn and Junger
: and any other cases we might try to bring.  Correct?

That may be the wish, but it is probably not the intent, since the
government already argues that the administrative decision to classify
a ``product'' as an ``encryption product'' is not subject to
administrative review.  That was the case pretty clearly under the
ITAR, though it may not be the case under the EAR.

But in any case this language would not prevent the courts from
hearing constitutional challenges to the regulations themselves or to
their application in particular cases.  So it will not affect the
constitutional claims in Bernstein, Karn and Junger or similar  claims
brought by anyone else, even if it passes.  But it might affect some
of the administrative law issues that are still being raised in the
Karn case.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists