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Kenkut Kenjutsu, Elbonia Today, 98/03/20
Here in Elbonia, it is a long-standing tradition that censorship of
any form of expression is repugnant and that any such attempt to
control the spread of ideas constitutes an impermissible violation of
Elbonian constitutional principles. Last year, the Elbonian Congress
passed new regulations making censorship of any kind a capital crime.
The regulations were written in such a way that, according to Elbonian
Minister of Justice Dijkit Ogbert, they apply to officials of foreign
governments as much as to citizens of Elbonia.
As reported yesterday in this publication, William Reinsch, an
official at the United States Commerce Department, made thinly veiled
threats towards staff members of Network Associates, Inc., a
U.S.-based company, in response to the company's announcement of a new
international version of its well-known PGP encryption product.
According to a company press release, the new version was created
outside U.S. territorial boundaries and is to be sold only outside the
U.S. by a foreign subsidiary. In what Ogbert described as a "bizarre
and reckless" statement, Reinsch claimed that such exports
nevertheless constitute a violation of U.S. export laws, and
implied that enforcement actions might be taken against the staff
members of the foreign subsidiary.
Today Ogbert noted that any attempt by Reinsch or other U.S. officials
to enforce the byzantine U.S. export laws against U.S. citizens or
nationals of other countries would be a crime punishable in an
Elbonian court of law. Ogbert admitted that prosecution of a foreign
national such as Reinsch may be difficult, especially given the U.S.'s
oft-demonstrated interest in censoring its own citizens' self-
expression.
Asked to comment further on the issue, Ogbert would only say: "Can we
reach a foreign national? Sometimes we can, sometimes we can't."
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The Code of Federal Regulations can be searched from http://law.house.gov/
Click on the CFR link and you can type in search words such as encryption.
The exemption for source code books is very explicit in section 734.3,
Items subject to the EAR (EAR is the Export Administration Regulations).
Specifically, 734.3(b) begins, "The following items are not subject to the
EAR:", and includes, in 734.3(b)(2):
the content of printed books, pamphlets, and miscellaneous
publications,
including newspapers and periodicals; printed books, pamphlets, and
miscellaneous publications including bound newspapers and periodicals;
Then there is a clarification regarding books containing crypto source
code:
Note to paragraphs (b)(2) and (b)(3) of this section: A printed
book or other printed material setting forth encryption source code
is not itself subject to the EAR (see Sec. 734.3(b)(2)). However,
notwithstanding Sec. 734.3(b)(2), encryption source code in electronic
form or media (e.g., computer diskette or CD ROM) remains subject to
the EAR (see Sec. 734.3(b)(3)).
It is quite clear that crypto source code in book form is explicitly
exempted, while the same material in electronic form is not. This is no
doubt an attempt to justify the government's actions in the Karn case,
where Applied Cryptography could be exported in book but not CDROM form.
Sections 734.7 through 734.9 contain various exemptions for publicly
available, academic research, and educational material. But all these
sections specifically state that they do not apply to encryption software.
So any discussion about whether a source code book was published for
academic reasons is a red herring. The academic exemption is irrelevant
to encryption software, and the CFRs do not impose any requirements
about the reason for publication of a source code book.
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