IP: New Executive Order on crypto is targeted at US!

[Dave Farber <farber () cis upenn edu>]

Date: Sat, 16 Nov 1996 08:37:36 -0800
From: John Gilmore <gnu () toad com>


If there was ever doubt that the transfer of crypto export controls to
Commerce was motivated by a desire to evade the current lawsuits, the
wording of the Executive Order makes it clear.  Even if that wasn't
the original motivation, they are certainly exploiting the move to
attempt it.  For example:


>                                      WILLIAM J. CLINTON
>   SUBJECT:       Encryption Export Policy
>   Accordingly, under the powers vested in me by the Constitution 
>   and the laws of the United States, I direct that:
> ...
>   4.  Because encryption source code can easily and mechanically 
>   be transformed into object code, and because export of such 
>   source code is controlled because of the code's functional 
>   capacity, rather than because of any "information" such code 
>   might convey, the Final Regulations shall specify that 
>   encryption source code shall be treated as an encryption 
>   product, and not as technical data or technology, for export 
>   licensing purposes.


This is their central legal argument in the Bernstein case.  "It isn't
unconstitutional censorship because we are controlling it for its
*function*, not for its *information*."  When we have computers that
can understand English text, this rationale would allow them to
control all published English text.  Barlow said it first:  "When your
principal item of commerce is indistinguishable from speech..."


>   6.  The Final Regulations shall, in a manner consistent with 
>   section 16(5)(C) of the EAA, 50 U.S.C. App. 2415(5)(C), provide 
>   that it will constitute an export of encryption source code 
>   or object code software for a person to make such software 
>   available for transfer outside the United States, over radio, 
>   electromagnetic, photooptical, or photoelectric communications 
>   facilities accessible to persons outside the United States, 
>   including transfer from electronic bulletin boards and Internet 
>   file transfer protocol sites, unless the party making the 
>   software available takes precautions adequate to prevent the 
>   unauthorized transfer of such code outside the United States.


And this enshrines in a presidential Executive Order their theory that
leaving an un-exportable stack of flyers on your doorstep in the
United States is "export" because a foreigner might pick one up.  Up
to now that's just been agency interpretation, completely unsupported
by regulations or law.


In a way it's nice to know that the President is tracking the progress
of your court case.  We knew it was an important case all along.  What
is 100% clear now is that THEY have known it too.  Our opposition is
not stupid, and is quite well connected internally.  When we push
something over here, it pops out over there in a pretty predictable
manner.  The guys drafting Executive Orders and top policy know
they're being sued, and know they're in danger of losing their club.
That's why they're wielding it so skilfully to "encourage" industry to
adopt "key recovery" before it's too late.  


        John