From msuinfo!agate!howland.reston.ans.net!darwin.sura.net!news-feed-1.peachnet.edu!concert!decwrl!toad.com!gnu Fri Jul 2 17:18:35 1993
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From: gnu@toad.com (John Gilmore)
Newsgroups: sci.crypt,misc.legal
Subject: 1st Amendment vs. ITAR: bibliography
Message-ID: <36178@toad.com>
Date: 28 Jun 93 16:12:55 GMT
Organization: Cygnus Support, Palo Alto
Lines: 107
Xref: msuinfo sci.crypt:17639 misc.legal:66336


law office of
Lee Tien
1452 Curtis Street
Berkeley, California 94702
_______________
tien@well.sf.ca.us
voice: (510) 525-0817
fax: (510) 525-3015

June 28, 1993

Clyde Bryant
Foreign Affairs Officer
Compliance Division
Bureau of Politico-Military Affairs
Office of Defense Trade Controls
U.S. Department of State
PM/ODTC SA-6 Rm. 200
Washington, DC 20522


Dear Mr. Bryant:

Mr. Dan Cook told my client, Mr. John Gilmore, that you and
the Compliance Division of the Office of Defense Trade Controls
are presently reviewing aspects of the International Traffic in
Arms Regulations (ITAR) with respect to First Amendment
questions. My client volunteered to send some law review
articles in order that all relevant materials be available to you in
this review.

I am pleased to provide you with some materials which you
may find useful in your review. They address First Amendment
and other constitutional issues raised by the Arms Export Control
Act, the ITAR, and the Export Administration Act.

We believe that information about cryptography, including
research papers, discussion of cryptographic algorithms, and
implementations in source-code form, is protected speech within
the meaning of the First Amendment. We also believe that the
export controls of the ITAR violate the First Amendment
because they infringe the rights of cryptographers to speak and
publish freely. The licensing procedure amounts to prior
restraint. The laws and regulations are vague and overbroad.

I have enclosed the following materials:

1. Ferguson, Scientific Inquiry and the First Amendment,
64 CORNELL L.REV. 639 (1979)

2. Note, National Security Controls on the Dissemination
of Privately Generated Scientific Information, 30
U.C.L.A. L. REV. 405 (1982)

3. Cheh, Government Control of Private Ideas -- Striking a
Balance Between Scientific Freedom and National
Security, 23 JURIMETRICS J. 1 (1982)

4. Greenstein, National Security Controls on Scientific
Information, 23 JURIMETRICS J. 50 (1982)

5. Alexander, Preserving High-Tech Secrets: National
Security Controls on University Research and Teaching,
15 LAW & POL'Y IN INT'L BUS. 173 (1983)

6. Wilson, National Security Control of Technological
Information, 25 JURIMETRICS J. 109 (1985)

7. John Harmon, Assistant Attorney General, Office of
Legal Counsel, Department of Justice, Memorandum to
Dr. Frank Press, Science Advisor to the President, Re:
Constitutionality Under the First Amendment of ITAR
Restrictions on Public Cryptography (May 11, 1978).

This memorandum was reprinted in The Government's
Classification of Private Ideas: Hearings before a Subcomm. of
the House Comm. on Government Operations, 96th Cong., 2d
Sess., 268-84 (1980). These hearing transcripts were
accompanied by a House Report. House Comm. on Gov't
Operations, The Government's Classification of Private Ideas,
H.R. REP. NO. 1540, 96TH CONG., 2D SESS. (1980). We strongly
recommend that you read both the hearing transcripts and the
summary report.

We hope that these materials will assist you in formulating a
constitutional export control policy for scientific research in
general and for cryptography in particular. Please do not hesitate
to contact me if you wish to engage in further exchanges.

Sincerely,





Lee Tien
Attorney at Law
On behalf of Mr. John
Gilmore


cc: Mr. Daniel Cook
Mr. John Gilmore
--
John Gilmore gnu@toad.com -- gnu@cygnus.com -- gnu@eff.org
Creating freedom, rather than longer chains, bigger cages, better meals, . . .