Feb 7 Assignment: Law & Internet Seminar (LAW 745)

Does the Internet Destroy Censorship? (Pt. 1): The ITAR

Arguably, the Internet makes it impossible -- or at least much, much more difficult -- for governments to prevent the free flow of information. This week we will look at one of the more elaborate efforts to prevent certain information from being exported from the U.S., and the constitutional challenge to those rules that is currently under way.

Reading:

1. The Arms Export Control Export Act, 22 U.S.C. sec. 2778. Here are a few things to think about as you read this statute:
   • Could a book explaining in step-by-step instructions how to build an atomic bomb be subject to control under this statute?
   • Could blueprints for an atomic bomb be subject to control under this statute?
   • Could detailed tables of technical information required to produce plastic explosives undetectable my metal detectors be controlled under this statute? Would it matter whether the information was
     • In a book?
     • A computer printout that could easily be scanned by an optical scanner?
     • On a floppy disk?
     • On a laptop computer?
     • Memorized by a scientist and carried in her head?
2. The ITAR. Please pay particular attention to the following sections:
   • 120.2
   • 120.4
   • 120.6
   • 120.9
   • 120.10
   • 120.17
3. Phil Karn's Page on the "Applied Cryptography Case" has almost everything you need. I've duplicated some of the key links here (with permission) for your convenience.
4. Introduction & Chronology
5. The printed textbook (CJ Case 038-94):
   • The original Commodity Jurisdiction Request (CJR) for the physical book (12 Feb 94)
   • The State Department rules that the book is freely exportable (2 Mar 94)
6. The floppy (CJ Case 081-94):
   • The CJR for the floppy (9 Mar 94)
   • Cover letter for a copy of the floppy mailed to NSA at their request (14 Mar 94)
   • Letter faxed to State asking for a response (18 Apr 94)
   • Email to John Gilmore re phone call with Alan Suchinsky at State (10 May 94)
   • State classifies the floppy as a controlled munition (11 May 94)

7. The administrative appeals:
   • Karn's appeal to Dr. Martha C. Harris, Deputy Assistant Secretary of State (7 Jun 94)
   • Harris says they need more time (20 Sep 94)
   • Harris affirms State's classification of the floppy as a munition (7 Oct 94)
   • Karn's attorneys appeal to Thomas McNamara, Assistant Secretary of State (5 Dec 94)
   • Karn's attorneys demand a response from McNamara (28 Apr 95)
   • McNamara affirms the earlier decisions (13 Jun 95)
   • Karn's attorneys say "see you in court" (19 Jul 95)
8. The lawsuit filed in the US District Court for the District of Columbia and assigned to Judge Charles Richey:
   • The complaint (21 Sep 1995)
   • Judge Richey's order for a Scheduling Conference on 6 Oct 1995 (22 Sep 1995)
   • Judge Richey's order to file motions for summary judgement (6 Oct 1995)
   • The Government asks the judge to throw out Karn's suit (15 Nov 1995):
     • Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment
     • Declaration of William P. Crowell, NSA Deputy Director
     • Defendants' Statement of Material Facts As To Which There Is No Genuine Issue
     • Declaration of William J. Lowell, Director of the Office of Defense Trade Controls
     • Memorandum of Points and Authorities In Support of Defendants' Motion to Dismiss, or in the Alternative, For Summary Judgement
     • Demonstration by an "NSA analyst" that the DES code on the floppy can be used to encrypt and decrypt information
   • Karn opposes the government's motion (11 Dec 1995):
     • Plaintiff's Opposition to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment
     • Plaintiff's Statement of Material Facts Genuinely in Dispute
     • Declaration of Philip R. Karn, Jr
     • Declaration of Philip R. Zimmermann in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss
     • Declaration of Barbara Tuthill in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss
   • On 18 Dec 1995 the two parties file a Joint Statement of Facts Not In Dispute
   • The government's reply (18 Dec 1995):
     • Reply Memorandum In Further Support of Defendants' Motion to Dismiss, Or In the Alternative, For Summary Judgment
   • Karn's sur-reply (22 Dec 1995):
     • Plaintiff's Supplemental Memorandum in Opposition to Defendants Motion to Dismiss, or in the Alternative, for Summary Judgment
     • Supplemental Declaration of Philip R. Karn, Jr.

Doing:

1. Put a link to your digitized photo on your homepage. If you don't want to use a photo of yourself, feel free to substitute the animal of your choice.

Optional

• There are many interesting links in the Cryptography Export Control Archives
• The Phil Zimmerman Case is now resolved. Here is how the case looked to Zimmerman's defenders.
• CyberLaw offers a nice summary of the Bernstein case.