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From: smb@ulysses.att.com (Steven Bellovin)
Newsgroups: news.admin,sci.crypt,comp.org.eff.talk,misc.legal.computing
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <15651@ulysses.att.com>
Date: 14 Oct 91 19:33:04 GMT
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In article <1991Oct14.154257.20310@newshost.anu.edu.au>, cmf851@csc2.anu.edu.au (Albert Langer) writes:
> Frankly I don't believe that you, or any of the others that have
> been pushing this issue have the SLIGHTEST interest in or intention of
> conclusively settling it that way - it's some kind of "urban myth"
> that you would RATHER keep speculating about. THAT is the problem,
> not the expense of lawyers.

If we're going to resort to name-calling, I'll drop out of this
discussion, thank you.  But let me pose this question to you:  why
should any number of UNIX system vendors go to great lengths to prepare
domestic and export versions of their systems when they could simply
include published code.  Consider Sun, for example.  Their ``encryption
kit'' sells for $50, a price that would barely cover their distribution
costs, if at all.  Do you really think they'd rather sell a no-profit
item when they could just bundle it in?  Ditto DEC, ditto AT&T, ditto
just about everyone else in the business.

The expense of lawyers comes in not when you try to understand and act
on the regulations, but in defending yourself if someone in the
government decides you're wrong.

I should add that the attempt has been made.  I've been told (by folks
who should know) that MIT discussed with the government their
arrangements for distributing Kerberos.  So it's not just hearsay or
urban myth.

As for me, personally?  I have no code to give away, putatively
restricted or not.  I don't own a machine of my own; the only
facilities I have for developing anything are AT&T-owned, so I'd have
no right to give code away no matter what it was for.  (I could, I
suppose, produce some hand- written algorithms and paper-mail them to
someone.)

> The fact is you prefer to broadcast to the world speculations
> about what you HOPE to find in some "paper" in your office tomorrow
> rather than pay the slightest attention to the plain words of the
> U.S. International Traffic in Arms Regulations. Clearly the issue
> here is religious, or at least mythological, not legal.

Do you write ``HOPE'' [sic] to imply that I was deluding myself, but
desparately grasping at straws to back up my earlier statement?  Bull.
The ``paper'' I referred to is ``Public Cryptography, Arms Export
Controls, and the First Amendment:  A Need for Legislation'', by
Kenneth J.  Pierce, Cornell International Law Journal, Vol 17:197,
1984, pp 197-236.  It won the 1984 Earl Warren Prize for the ``paper
best exemplifying the late Chief Justice's commitment to civil
rights''.  Frankly, I have somewhat more confidence in Pierce's reading
of the regulations than I have in my own.  In any event, after citing
the same section 120.18 that you quote, he continues, ``This exemption,
however, is not self- executing; it must be applied for.''  The
footnote reads as follows; I'm using \(sc for the section squiggle:

	22 C.F.R. \(sc 125.20(a)(1983).  The burden of obtaining
	government approval of an ITAR license or of an ITAR exemption
	is on the person or company seeking publication.  22 C.F.R.
	\(sc 125.11(a)(1) n.3 (1983).

The Murray Hill technical library does not appear to have that section
of the Code of Federal Regulations; I may or may not wander over to the
local lawyers and see if there's an easily accessible copy.

Again, can we please avoid the name-calling and aspersions?  You've
obviously done much more homework than most folks; kindly grant us the
right to come to different conclusions based on the data we do have.

And as for your comment the other day about whether or not the U.S.
government was stupid enough to behave in that fashion -- given the
story about Ken Thompson and the chess machine, or the story about the
Soviet nuclear reactor, I have to conclude that yes, it can be that
stupid....


		--Steve Bellovin

P.S.  Please don't read the above as indicating I agree with the law or
the regulations.  I don't, and I've said so in the past in this forum.

From news.admin Tue Oct 15 16:47:53 1991
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From: dennis@gpu.utcs.utoronto.ca (Dennis Ferguson)
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <1991Oct14.201359.8360@gpu.utcs.utoronto.ca>
Organization: none at all
References: <2047@array.UUCP> <1991Oct13.142314.7504@newshost.anu.edu.au> <15646@ulysses.att.com> <1991Oct14.154257.20310@newshost.anu.edu.au>
Date: Mon, 14 Oct 1991 20:13:59 GMT

In article <1991Oct14.154257.20310@newshost.anu.edu.au> cmf851@csc2.anu.edu.au (Albert Langer) writes:
>125.1
>(a) The export controls of this part apply to the export of technical
>    data . . . . Information which is in the "public domain" (see
>    section 120.18) is not subject to the controls of this sub-chapter.
>
>There is no way you can interpret the plain words "...Information which
>is in the 'public domain' ... is not subject to the controls of
>this sub-chapter." as meaning that you still have to apply for a
>licence and cite some publication - under what regulations would you
>apply? Certainly not the International Traffic in Arms Regulations
>since that is sub-chapter M, nor the Export Administration Regulations,
>which explicitly provide a GTDA licence WITHOUT application under
>similar circumstances.

I don't want to debate this, but did want to point out why I personally
would see a lawyer rather than taking your word for it.  As I understand
it, your arguments are that:

(1) The "public domain" exemption in part 125 applies to all information,
    not just "technical data".  DEC's lawyer disagrees with this because
    the exemption is in part 125, and part 125 explicitly applies to
    "technical data" only.

(2) That while "cryptographic software" certainly is a "defense article"
    (we know this is true because 120.7 defines "defense article" as
    any item in the munitions list, and "cryptographic software" is an
    item mentioned in the munitions list), it is also "technical data"
    so that part 125 applies to it as well.  DEC's lawyer, on the other
    hand, says that "cryptographic software" can't be a "defense article"
    and "technical data" simultaneously, and since it is certainly a
    "defense article" by virtue of its inclusion in the munitions list,
    it isn't "technical data" and part 125 does not apply.

So what it comes down to is we have you saying that (1) part 125 applies
to "defense articles" as well as "technical data", and (2) "cryptographic
software" is "technical data" even though it is also a "defense article",
while DEC's lawyer says that neither of these assertions is true.  So
what we have is you and DEC's lawyer coming to different conclusions
based on a reading of the same material.

So who should I believe, DEC's lawyer or you?  I think I'd rather get
another opinion, thanks.

Dennis Ferguson
University of Toronto

From news.admin Sat Oct 19 01:46:13 1991
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From: jeh@cmkrnl.com
Newsgroups: news.admin
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <1991Oct18.160835.4@cmkrnl.com>
Date: 18 Oct 91 23:08:35 GMT
References: <17517@smoke.brl.mil> <1991Oct14.164119.20717@newshost.anu.edu.au> <1991Oct16.213558.19013@sci34hub.sci.com> <1991Oct17.162951.28352@newshost.anu.edu.au>
Organization: Kernel Mode Consulting, San Diego CA
Lines: 28

In article <1991Oct17.162951.28352@newshost.anu.edu.au>,
 cmf851@csc2.anu.edu.au (Albert Langer) writes:
> In article <1991Oct16.213558.19013@sci34hub.sci.com> gary@sci34hub.sci.com 
> (Gary Heston) writes:
> 
>>I have enough to do with my time, without having the FBI or SS investigate
>>me, seizeing all my computer stuff (not to mention the field day they'd
>>have here at work), and doing more damage to my finances than I already
>>have this year with the legal expenses I'd pay fighting them to get just
>>my own stuff back, not to mention needing another job after getting the
>>company shut down for a month or so.
> 
> Wow, what an exciting life you must lead with the FBI and SS just waiting
> to pounce on you to search for "public domain" software that you might
> have got from some public library and exported.

Al, please go to a public library and find the September, 1991 issue of
_Scientific American_.  Read the article "Civil Liberties in Cyberspace" by
Mitchell Kapor.  THEN tell us that anyone who wants to export p-d software that
just happens to be on the U.S. Munitions List has *absolutely nothing* to worry
about, just because current law can be interpreted to mean that it's okay for 
them to do so. 

Yes, we live in exciting times.  

	--- Jamie Hanrahan, Kernel Mode Consulting, San Diego CA
Internet:  jeh@dcs.simpact.com, hanrahan@eisner.decus.org, or jeh@crash.cts.com
Uucp:  ...{crash,eisner,uunet}!cmkrnl!jeh

From news.admin Mon Oct 21 16:34:16 1991
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From: smb@ulysses.att.com (Steven Bellovin)
Newsgroups: news.admin,sci.crypt,misc.legal.computing,comp.org.eff.talk
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <15706@ulysses.att.com>
Date: 21 Oct 91 16:18:54 GMT
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In article <1991Oct21.141925.16401@newshost.anu.edu.au>, cmf851@csc2.anu.edu.au (Albert Langer) writes:

I give up; this is my last message shouting into the wind.  You've
won; please export whatever you want...
> 
> I have seen messages from Rich Salz, rather terse messages, perhaps
> composed during an occasional break taken from moderating the massive
> volume of software pouring through comp.sources.unix, and I have seen
> messages from various people reporting what they believe they have heard 
> from other people about things told to MIT.

You labeled my statement -- when I quoted someone from MIT -- as ``double
hearsay'', implying -- nay, stating -- that you wouldn't accept it if
my source posted directly to the net.  For what it's worth, I think that
my source was at the meeting, or saw the messages; he was involved with
Kerberos as part of his work on Project Athena.

Besides, we're not talking rules of evidence here.  We're trying to
establish whether or not the U.S. government enforces certain policies,
despite your reading of the regulations.

> "Secret law" is unenforceable in the United States. The U.S. Government
> takes it's position on what is export controlled through published
> regulations such as the International Traffic in Arms Regulations and
> the Export Administration Regulations (which are themselves subject
> to review by the courts).

You're quite correct about the unenforceability of secret law.  However,
the law is not a computer; you don't feed in a text file containing the
statutes and regulations, and another file describing actions, and wait
to see if an indictment pops out.  In the real world, there are advisory
opinions, and sometimes even negotiations.  In a case like this, where
the government may be more interested in preventing an action than in
prosecuting aftewards, it's certainly in their interest to try to persuade
you otherwise.  (Note that I'm not expressing an opinion on whether
that's right or wrong; I'm simply saying that it happens.)

Of course, it's entirely possible that MIT was bluffed, and that there
wouldn't have been a prosecution.  I have no way of knowing.  On the
other hand, not all indictable offenses are prosecuted -- and the decision
criteria can be as simple as ``our budget will let us handle this case or
that, and this one isn't important enough''.

Look -- your basic claim is that the regulations now permit export.  I,
and several others, have posted reasons why we think you're wrong.  In
my case, it's partly because someone I know personally was told otherwise
by a representative of the U.S. government.  If you have some evidence
that you're right -- as opposed to your own reading of the regulations --
you're welcome to post it.  Otherwise, please go away on this topic, at
least on sci.crypt.

From sci.crypt Mon Oct 21 16:46:38 1991
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From: smb@ulysses.att.com (Steven Bellovin)
Newsgroups: sci.crypt,news.admin,misc.legal.computing,comp.org.eff.talk
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <15693@ulysses.att.com>
Date: 18 Oct 91 19:16:24 GMT
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In article <1991Oct18.162232.10563@newshost.anu.edu.au>, cmf851@csc2.anu.edu.au (Albert Langer) writes:
} What is missing from the other side in this debate is a single
} scrap of evidence from anyone that the U.S. Government either claims
} it can control the export of public domain information or attempts
} to do so. So far the claims have come solely from self-appointed
} net police, not the U.S. Government and I have quoted the plain
} words of the relevant U.S. Government regulations to show the
} Government specifically rejects any such claim.

I'd say you missed the part of an earlier posting of mine that
mentioned it; however, since you responded to that paragraph, I
can't make that excuse for you.  The Kerberos folks *did* check
with government officials on distribution mechanisms.  The bones
distribution was the result of that contact.  To be sure, I'll quote
myself -- and you -- again.

	>I should add that the attempt has been made.  I've been told (by folks
	>who should know) that MIT discussed with the government their
	>arrangements for distributing Kerberos.  So it's not just hearsay or
	>urban myth.

	I have no criticism of the MIT arrangements for distributing Kerberos.
	They strike me as quite a reasonable way to release some software to
	the U.S. "public domain" (in the ITAR sense) without any possibility
	of being accused of having simultaneously exported it (as might be
	the case if they posted it to a sources group or initially released
	it WITHOUT such warnings in an ftp area accessible to foreigners).

Hearsay?  Perhaps legally -- I wasn't at the meeting.  But I heard the
story from someone whom I believe was there.

By the way, have you ever worked for a software development organization?
Do you have any idea just how much trouble it is to prepare an entire
release, in two versions?  I've been there, and I've been at lots of
meetings, including some with management present, and you wouldn't
believe the pain the export rules have caused.  AT&T's lawyers aren't
complete fools, you know...

From dennis Mon Oct 21 23:22:21 EDT 1991
Replied: Mon, 21 Oct 91 14:02:32 -0400
Replied: Dennis Ferguson <dennis@MrBill.CAnet.CA>
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From:	Dennis Ferguson <dennis@MrBill.CAnet.CA>
To:	moraes@cs.toronto.edu
Subject: Re: export of cryptographic info
Cc:	cks@utcs.utoronto.ca, clewis@ferret.ocunix.on.ca, rayan@cs.toronto.edu
Message-Id: <91Oct21.121504bst.105468@MrBill.CAnet.CA>
Date:	Mon, 21 Oct 1991 07:14:54 -0400

Mark,

I have a 1986 copy of ITAR (the State department regulations) somewhere,
though I'm damned if I'm going to type them in.

There is definitely an exemption for Canada in ITAR as well, in the case
of non-classified defense articles and technical data.  I don't know that
Canada has any regulations against reexport except COCOM, however, and
the original exporter from the US appears to be responsible if stuff
gets reexported from Canada, so this may act as a deterent to export
here as well.

I think the whole issue of the applicability of the public domain exemption
is whether "cryptographic software" can be a "defense article" and
"technical data" simultaneously, since the public domain exemption is
in part 125 which only applies to "technical data".  The DEC lawyer says
"cryptographic software" can't be both simultaneously, and hence part 125
does not apply, but note that this is only his opinion.  The law doesn't
say this.  Note also that the DEC lawyer is schizophrenic about this, in
that he first claims that part 125 doesn't apply to "cryptographic software",
but later claims that export is assumed if the software can be accessed by
foreign nationals, something that would only be true if part 125 applied
to "cryptographic software" since that is where the latter restriction is.

Note that the MIT policy on Kerberos (putting it in an ftp area where
foreigners can see it, but warning against export) is consistant with
"cryptographic software" being a "defense article" only, since it
complies with part 123 (which controls "defense articles") but not
part 125 (which has the restriction about showing stuff to foreigners).
If the government told MIT this was okay then they probably think that
"cryptographic software" isn't "technical data" either.

Dennis
From news.admin Wed Oct 23 15:48:32 1991
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From: karn@qualcom.qualcomm.com (Phil Karn)
Newsgroups: sci.crypt,news.admin,misc.legal.computing,comp.org.eff.talk
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <1991Oct22.162742.20083@qualcomm.com>
Date: 22 Oct 91 16:27:42 GMT
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In article <1991Oct21.201017.9087@visix.com>, amanda@visix.com (Amanda Walker) writes:
|> Mr. Langer, I have not only read the law in question, I have spoken
|> directly with the U.S. customs service about exporting software which
|> could be used for encipherment.  I specifically asked about *both*
|> proporietary and public domain implementations, since I hoped, as you
|> do, that ITAR would not cover PD software.  I was told that all export
|> of cryptographic software, regardless of its status as public domain,
|> required a munitions export license, with a single exception. [...]

Here's one data point, for what it's worth.

Some years ago I wrote a DES implementation and placed it (source and
object) into the public domain.  (Actually, I started with PD DES
function code by Richard Outerbridge and several others, hacked it
heavily and tuned it for speed, ported it to the PC, and created a
"des" command that is a compatible, functional superset of the SunOS
"des" command.)  I've explicitly disclaimed all ownership and control
over this software - anyone may use it for any purpose without my
permission.

My code has been available for quite some time by anonymous FTP from
numerous sites, some of which are outside the US (of course, I have no
idea who put it on those non-USA sites!) One indication of how far and
wide it has propagated is that a friend found it incorporated into a
disk of programs sold for pirating the GI Videocipher II satellite
descrambling system.

No one from the government has EVER questioned me about this code. I
did hear a rumor from a friend who works in the "intelligence
community" that someone did write a letter to the US Commerce Dept
accusing me of "treason" for this act, but nothing ever came of it.
Apparently this particular complaint was politically motivated since
the writer was believed to be a radio amateur who was opposed to the
creation of a no-code amateur radio license, a cause I was strongly
supporting in public at the time. (To this day I do not know the
identity of the letter writer, or the actual contents of the letter).

So there are three possibilities:

1. The appropriate parties in government still haven't heard of my code
and its widespread dissemination outside the US.

2. They've heard, but they don't care.

3. They've heard, they care, but they don't think they could successfully
prosecute me for ITAR violations.

Any guesses?

Phil

From news.admin Mon Oct 28 23:51:43 1991
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From: Tony_S_Patti@cup.portal.com
Newsgroups: news.admin,sci.crypt
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <49294@cup.portal.com>
Date: 27 Oct 91 03:11:59 GMT
References: <1991Oct19.192053.17624@nntp.hut.fi>
  <1991Oct23.031155.29060@sq.sq.com> <9686@cactus.org>
Organization: The Portal System (TM)
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While there have already been 69 messages in this thread, I am, I
believe, the only person to join the discussion who has received
validated DSP-5 export licenses from the U.S. Department of State (I
have received 6) -- and these were approved without my having to pay to
register as an exporter.  

Before I begin, let me state unequivocally that I have always believed
that the First Amendment supersedes ITAR.  In fact I asked [via
certified mail with return receipt] the Department of State to respond
in writing if they agreed or disagreed with that statement, and they
chose instead NOT to respond at all.

I had 6 licenses approved in the April 87 - July 87 time period for the
export of FREE copies of a Galois Field based cryptosystem with complete
source code in Pascal (and a maximum functional keyspace of 249 bits; my
more recent software which appears in _Cryptosystems Journal_ supports
megabit-sized keys).  I don't need a degree from the Wharton School of
Business [but I have one anyway] to know that FREE crypto software has
no economic value!  My offer of FREE cryptosystems has appeared in a
number of publications (Cryptologia, Corporate Security Digest,
Circuit Cellar Ink, The EDP Auditor Update, IEEE Communications
Magazine, among others).  This list is indicative of the wide range of
uses that cryptology has in the modern world.  These licenses were
granted after I appealed the first Commodity Jurisdiction (CJ)
determination that I received and after I met with 2 NSA employees (the
same date I met with these 2 employees a letter was also sent to me from
the U.S. Internal Revenue Service stating that I owed additional taxes -
- coincidence that the only time I met with the NSA was the only time
[before or since] I was sent such a letter from the IRS -- on the same
exact day???  And by the way, they agreed after the obligatory
correspondence that I did NOT owe additional taxes).  I specifically
point out that a cryptosystem such as mine which utilizes a pair of
matrices containing integers as the keys traces its roots back to Prof.
Lester Hill's papers in 1929 and 1931 -- hardly "state-of-the-art"
high-technology!

For the legal and policy background on this issue I recommend "Public
Cryptography, Arms Export Controls, and the First Amendment: A Need for
Legislation" in _Cornell International Law Journal_, Volume 17, 1984,
pages 199-236, which I have posted about some time ago.

The only court case which is related to this topic is U.S. of A. vs Edler
Industries [they worked on Polaris and other missile programs but the
carbon/carbon technology was dual-use], see 579 Federal Reporter 2d
Series, pages 516-522, a decision rendered by the U.S. Court of Appeals
on July 31, 1978.  Notable quotes from this decision are:

      "If information could have both peaceful and military
      applications, defendant must know or have reason to know that its
      information is intended for prohibited use."

I REALLY LIKE THE ABOVE JUDICIAL QUOTE.

      "... evidence concerning nonmilitary applications is relevant to
      the question of scienter, i.e., whether a defendant knew or should
      have known that the recipient of the exported information would
      use the information to produce or operate Munitions List
      articles."

      "In the context of the regulatory framework, an expansive
      interpretation of technical data relating to items on the
      Munitions List could seriously impede scientific research and
      publishing and the international scientific exchange."

      "If the information could have both peaceful and military
      applications, as Edler contends that its technology does, the
      defendant must know or have reason to know that its information is
      intended for the prohibited use."

      "These limitations are necessary both to adhere to the purpose of
      the Act and to avoid serious interference with the interchange of
      scientific and technological information."

In February 1980 the U.S. Department of State wrote Munitions Control
Newsletter # 80 which stated in part:

      "Concern has been voiced that ITAR provisions relating to the
      export of technical data as applied to cryptologic equipment can
      be so broadly interpreted as to restrict scientific exchanges of
      basic mathematical and engineering research data.  The Office of
      Munitions Control wishes to clarify the application of the
      technical data provisions of Section 121.01, Category XVIII, of
      the ITAR as applied to equipment found in Categories XI(c) and
      XIII(b) of the Munitions List."

      It [Ed: OMC's interpretation of ITAR] does not include general
      mathematical, engineering or statistical information, not
      purporting to have or reasonably expected to be given direct
      application to equipment in such categories.  It does not include
      basic theoretical research data.  It does, however, include
      algorithms and other procedures purporting to have advanced
      cryptologic application."

      "The interpretation set forth in this newsletter should exclude
      from the licensing provisions of the ITAR most basic scientific
      data and other theoretical research information, except for
      information intended or reasonably expected to have a direct
      cryptologic application."

The bottom line of this is that there are at least some things which are
exempt from ITAR licensing.  The definition of *what* those things are
is still ill-defined, more than a decade later.

On April 18, 1988 the Office of Munitions Control sent me the following
letter:

      "On February 27, 1987 the Department of State ruled that your
      software [Ed: for which I had already received approved licenses]
      which performs encryption, decryption, and key generation
      functions is covered by the U.S. Munitions List (22 CFR 121.1). 
      Your letter of March 4, 1987 [Ed: more than a year before they sent
      their response in this letter] suggests that the software in
      questions [sic] is in the public domain and should therefore not
      be subject to licensing under the International Traffic in Arms
      Regulations (ITAR).  The Department of State has reviewed this
      matter further and does not concur with the contention that
      cryptologic software is technical data exempt from licensing
      requirements under 22 CFR 120.18 and 125.1(a)."

      "Cryptologic software is not technical data under Category XVIII
      of the Munitions List.  Such software is specifically enumerated
      in Category XIII(b).  Is [sic: It] is therefore ineligible for
      treatment as technical data by virtue of its inclusion in Category
      XIII(b) (see 22 CFR 121.8(f)).  Accordingly, it is not subject to
      the provision of 22 CFR 120.18 and 125 regarding public domain and
      technical data licensing exemptions, respectively."

      [Ed: the sentence above is important -- re-read it!  It says that
      CRYPTO SOFTWARE CAN NOT BE IN THE PUBLIC DOMAIN.  And by the way,
      the ITAR definition of *SOFTWARE* includes ALGORITHMS, etc.]

      "Accordingly, export license requests must be submitted to this
      office for review and approval.  They will be considered on a case-
      by-case basis."

Although information had been communicated to me verbally, I had to file
a Freedom of Information Act request to receive a written copy of NSA's
input on this case.  It was in grand total the following one sentence
(marked DECLASSIFIED):

      "Although software was developed from open source material, the
      application of that information into the subject software program
      contains cryptographic capabilities that are controlled under
      category 13B."

The U.S. Department of Commerce took the opposite stance:

      There is no military application identified.  The software is also
      written without a military application in mind."

Guess What!  When NSA and Commerce hold opposite views, the Department
of State breaks the tie, and SURPRISE! they say that the State
Department control it [via ITAR]!

If waiting more than a year to get a response seems bad, more than two
years ago I sent for Commodity Jurisdiction (CJ) determination of a
4-line BASIC program which implements a Caesar Shift Cryptosystem (you
know IBM <--> HAL when the shift is "1").  Such a cryptosystem is two
thousand years old [see _The Codebreakers_ page 83].

It is clear that OMC and NSA has taken [and I believe they know it] an
untenable position that no crypto software can be in the public domain. 
However they balance this untenable position by doing NOTHING!  They
don't respond, they don't complain, they don't prosecute, and they
don't process my written CJ or DSP5 applications any more [they just
"withdraw them from consideration" without telling me in writing]. 
Cryptologia has been publishing algorithms and software which have been
distributed internationally for 15 years.  Scientific American
published what they stated is "a complete description of the DES that
happens to be its most public appearance to date".  And you think they
submitted to OMC individualized DSP-5 licenses for each international
subscriber they have (and then waited more than a year for a response)?!

      Tony Patti
      Editor & Publisher
      Cryptosystems Journal
      P.O. Box 188
      Newtown, PA  18940-0188
      Phone: (215)579-9888

 

From news.admin Mon Oct 28 23:52:13 1991
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From: ted@nmsu.edu (Ted Dunning)
Newsgroups: news.admin,sci.crypt
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <TED.91Oct27090609@lole.nmsu.edu>
Date: 27 Oct 91 16:06:09 GMT
References: <1991Oct19.192053.17624@nntp.hut.fi>
	<1991Oct23.031155.29060@sq.sq.com> <9686@cactus.org>
	<49294@cup.portal.com>
Sender: news@NMSU.Edu
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Organization: Computing Research Lab
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In-reply-to: Tony_S_Patti@cup.portal.com's message of 27 Oct 91 03:11:59 GMT


In article <49294@cup.portal.com> Tony_S_Patti@cup.portal.com writes:


	 "Cryptologic software is not technical data under Category XVIII
	 of the Munitions List.  Such software is specifically enumerated
	 in Category XIII(b).  Is [sic: It] is therefore ineligible for
	 treatment as technical data by virtue of its inclusion in Category
	 XIII(b) (see 22 CFR 121.8(f)).  Accordingly, it is not subject to
	 the provision of 22 CFR 120.18 and 125 regarding public domain and
	 technical data licensing exemptions, respectively."

	 [Ed: the sentence above is important -- re-read it!  It says that
	 CRYPTO SOFTWARE CAN NOT BE IN THE PUBLIC DOMAIN.  And by the way,
	 the ITAR definition of *SOFTWARE* includes ALGORITHMS, etc.]



i don't think so.  what they are saying is that only technical data is
eligible for consideration as exempt from the ITAR requirements
because it is public domain.  they are not saying that software cannot
be public domain, only that it is controlled even if it is public
domain. 

if you are so inclined, the following table might help describe
their position:

		Public Domain	Private

Data		uncontrolled	controlled

Software	controlled	controlled

From news.admin Mon Oct 28 23:52:32 1991
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From: Tony_S_Patti@cup.portal.com
Newsgroups: news.admin,sci.crypt
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <49327@cup.portal.com>
Date: 28 Oct 91 05:07:18 GMT
References: <1991Oct19.192053.17624@nntp.hut.fi><1991Oct23.031155.29060@sq.
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Organization: The Portal System (TM)
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In article 10/27/91 08:06 32/1185 ted@nmsu.edu (Ted Dunning) writes:

> i don't think so.  what they are saying is that only technical data is
> eligible for consideration as exempt from the ITAR requirements
> because it is public domain.  they are not saying that software cannot
> be public domain, only that it is controlled even if it is public
> domain.
>
> if you are so inclined, the following table might help describe
> their position:
>
>                   Public Domain         Private
>
> [Technical] Data   uncontrolled      controlled
>
> Software             controlled      controlled

Ted, you are entitled to your opinion of what YOU think THEY mean by their
statement.  But since I have lived through this and have had lots of written,
and verbal discussions with the people who administer ITAR,
I suggest that YOUR interpretation of THEIR position is wrong, not mine.

The reason I HAD to apply for licenses to export free crypto software was
because they took the position that CRYPTO SOFTWARE COULD NOT BE IN THE
PUBLIC DOMAIN which would exempt it from ITAR.  The sections they reference
are:

       120.18 : ITAR's definition of "Public Domain", and
       125    : "Licenses for the Export of Technical Data..."

As an aid to understanding what they are saying, appearing again below is
their quotation:

         "Cryptologic software is not technical data under Category XVIII
         of the Munitions List.  Such software is specifically enumerated
         in Category XIII(b).  Is [sic: It] is therefore ineligible for
         treatment as technical data by virtue of its inclusion in Category
         XIII(b) (see 22 CFR 121.8(f)).  Accordingly, it is not subject to
         the provision of 22 CFR 120.18 and 125 regarding public domain and
         technical data licensing exemptions, respectively."

and its conversion from bureaucratic language to English:

1.   Cryptologic software is not technical data RELATING to a defense article.
2.   Cryptologic software IS ITSELF A DEFENSE ARTICLE (not technical data).
     [Part 123 of ITAR rather than PART 125 which covers technical data].
3.   The Public Domain exemption applies to technical data not defense
     articles, and since we (OMC) have decided that cryptologic software is
     NOT technical data, we conclude that therefore cryptologic software can not
     be in the public domain ever.  In other words, if it isn't technical data
     it therefore also isn't public domain [for ITAR purposes].
4.   Cryptologic software is not subject to << the public domain exemption >>
     and << licenses for the export of technical data >> respectively.
     Therefore, part 123 "Licenses for the export of Defense Articles"
     applies instead of part 125.

I SHOULD STATE AGAIN THAT I DO NOT AGREE AT ALL WITH WHAT THEY SAY.
I DO NOT THINK THAT IT MAKES SENSE.
I DO NOT BELIEVE THAT THEIR STATEMENTS AGREE WITH THE INTENT OF THE LAW,
THE CONSTITUTION, WITH JUDICIAL DECISIONS, OR WITH THEIR OWN
PRIOR STATEMENTS (specifically OMC Newsletter #80 entitled
"Cryptography/Technical Data".  You see, paragraph 2 of their newsletter
begins "Cryptologic technical data...".  It is just convenient for them that
they decide later that this category does not include cryptologic software
[in section 121.8(f) software includes but is not limited to the system
functional design, logic flow, algorithms, application programs, operating
systems and support software for design, implementation, test, operation,
diagnosis and repair].  This definition itself can lead to bizarre ends:
"MS-DOS and Turbo Pascal are operating system and support software used
for the design and implementation of PC-based crypto software".  Therefore,
I would guess OMC would consider both MS-DOS and Turbo Pascal to be ITAR
controlled defense articles also!  Their whole position is untenable and
so utterly broad (or can be so broadly interpreted) as to potentially
restrict EVERYTHING.

YOU WANTED TO KNOW WHAT THEY THINK ITAR IS, AND IT IS WHAT I STATE ABOVE.

Ted, you think that OMC interprets ITAR to say that "cryptologic software is
controlled even if it is public domain." (re-phrased from your quote above).
However, I think I have shown that they expressly take the position that
cryptologic software CAN NOT BE PUBLIC DOMAIN BECAUSE IT IS NOT
TECHNICAL DATA (only technical data can be public domain).

A more accurate table (following your inspiration) of OMC's position is:

                                 Public Domain      Non-Public-Domain
                                 -------------      -----------------
 Technical Data                         EXEMPT      controlled
 (does not include software
  does not include algorithms)

 Software                                  N/A      controlled

 Hardware                                  N/A      controlled

You or anyone else can play a game of semantics with OMC's words,
but I KNOW WHAT THEIR POSITION WAS IN THE LETTER I QUOTED BECAUSE IT
WAS SENT TO ME.  I hope that OMC/NSA will eventually take a more reasonable
and tenable position in the future.  But until I see something on their
letterhead which is different from what I stated above, I will continue
to know that this is their current untenable position.

     Tony Patti
     Editor & Publisher
     Cryptosystems Journal
     P.O. Box 188
     Newtown, PA  18940-0188
     Phone: (215)579-9888

 

From news.admin Tue Oct 29 22:36:12 1991
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From: cme@ellisun.sw.stratus.com (Carl Ellison)
Newsgroups: news.admin,sci.crypt
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <8846@lectroid.sw.stratus.com>
Date: 29 Oct 91 20:07:12 GMT
References: <TED.91Oct27090609@lole.nmsu.edu> <49327@cup.portal.com> <1991Oct29.184015.15308@sci.ccny.cuny.edu>
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In article <1991Oct29.184015.15308@sci.ccny.cuny.edu> dan@sci.ccny.cuny.edu (Dan Schlitt) writes:
>I call your attention to the "born classified" doctrine that is
>applied to nuclear weapons information.


By the way, the Congress had hearings on this issue back in the early
80's and found no basis for an argument that cryptographic research is
born classified.  I know you didn't intend to imply that there was,
but wanted to forestall speculation.

From news.admin Fri Nov  1 14:39:07 1991
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From: Tony_S_Patti@cup.portal.com
Newsgroups: news.admin,sci.crypt
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <49472@cup.portal.com>
Date: 31 Oct 91 01:27:58 GMT
References: <49294@cup.portal.com> <TED.91Oct27090609@lole.nmsu.edu>
  <49327@cup.portal.com> <1991Oct28.165353.7938@newshost.anu.edu.au>
Organization: The Portal System (TM)
Lines: 63


In 10/28/91 06:36 183/9105 cmf851@csc2.anu.edu.au (Albert Langer) writes:

> I won't agree that this proves the Government is being stupid either
> - just that they are engaging in illegal intimidation themselves,
> which so far has worked. If simple letter writing does not force
> them to abandon this position I hope somebody does take them to
> court over it - perhaps it is time to call in ACLU and EFF?

I don't consider what I did "simple letter writing".
For one thing, you don't see the telephone calls and other work involved.

Actually, the ACLU office in Washington, DC across the street from the
U.S. Supreme Court building was involved with, received carbon copies of,
and provided moral support for my endeavors.  I suspect this is one of the
reasons why it took OMC over a year to write a 4 paragraph letter.

While I will not comment on other ACLU efforts, they are in my opinion
the most effective group in "protecting the Bill of Rights" (I use, among
other metrics, the number of cases taken to the U.S. Supreme Court).
They certainly provided useful support of my efforts to protect the First
Amendment.  For further information related to this, other subjects (for
example submitting FOIA Requests), or joining, their addresses are:

ACLU                                   ACLU
122 Maryland Avenue, NE                132 West 43 Street
Washington, DC  20002                  New York, NY  10036

I have indeed also corresponded with the Electronic Frontier Foundation (EFF)
concerning this matter.

In 10/28/91 08:53 100/5551 cmf851@csc2.anu.edu.au (Albert Langer) writes:

> I see nothing in their letter claiming
> that no cryptographic software could meet the definition of "public
> domain" in section 120.18 but simply that it would not be excluded
> from ITAR controls even if it was, since the exclusion of public
> domain information from controls in 125.1(a) does not apply.

I do not agree with your or Ted's interpretation on this point.
1.  I put forth a claim to OMC that my FREE crypto software was ITAR exempt
    because it is in the public domain [for example, I have receipts from
    libraries that this software resides in -- this is the section 120.18(d)
    public domain exemption].  Let alone that this is FREE software, etc.
2.  OMC responds that crypto software is not technical data but instead a
    defense article.
3.  OMC achieves what they want (rejecting my public domain claim) because you
    can NOT have a public domain defense article (you can't have "public domain
    ballistic missles") -- or choose any other type of military hardware you
    want to use as an example.
4.  "Public domain means information" (the first 4 words in the section 120.18
    definition of public domain.  By their definition above, OMC says crypto
    software is NOT information (technical data) but instead a defense article.
OMC's position is that there can NOT BE PUBLIC DOMAIN CRYPTO SOFTWARE.
My interpretation of OMC's position on this point is the correct one.

    Tony Patti
    Editor & Publisher
    Cryptosystems Journal
    P.O. Box 188
    Newtown, PA  18940-0188
    Phone: (215)579-9888
 

From news.admin Fri Nov  1 14:59:56 1991
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From: olsen@athena.mit.edu (James J Olsen)
Newsgroups: news.admin,sci.crypt
Subject: Re: U.S. Cryptographic export restrictions
Message-ID: <1991Oct31.181844.11151@athena.mit.edu>
Date: 31 Oct 91 18:18:44 GMT
References: <TED.91Oct27090609@lole.nmsu.edu> <49327@cup.portal.com> <1991Oct28.165353.7938@newshost.anu.edu.au>
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In article <1991Oct28.165353.7938@newshost.anu.edu.au>
cmf851@csc2.anu.edu.au (Albert Langer) suggests that since the Office
of Munitions Control (OMC) has stated that cryptographic software is a
"defense article" and not "technical data", one is free to 'disclose'
this software electronically:

>Why argue with them? The exclusion of "public domain" information
>from their controls is irrelevant unless you want to "send or take"
>cryptographic software out of the United States. They have handed you
>on a platter the opportunity to merely "disclose" it by "electronic
>means" without needing a licence until such time as they withdraw
>their claim.

22 CFR 120.10 [Export] states:
  "Export" means, for purposes of this subchapter: 
    (a) Sending or taking defense articles out of the United States in
    any manner...

It is inconceivable to me that OMC would not interpret this section
to include electronic transmission of 'defense articles'.  Compared
to the other linguistic handstands OMC has already performed, this one
is comparatively modest.

N.B.: I don't *agree* with OMC on this.  I think export controls on
publicly-available software are neither practically, nor legally, nor
constitutionally defensible.  What I am saying is that their argument
isn't so patently absurd as to be thrown out of court.  That's all
they need for now.

From list-admin Fri Nov 1 21:09:53 EST 1991
Path: news-server.csri.toronto.edu!cs.toronto.edu!snmp-distribution-owner
Date: Tue, 29 Oct 1991 16:43:00 -0500
From: tmendez@wellfleet.com (Trevor Mendez)
Message-ID: <9110292143.AA15783@canna.wellfleet.com>
Original-To: oldera@mercury.twg.com
Subject: Re:  MD-4  & DES
Original-Cc: snmp@uu.psi.com, tmendez@wellfleet.com
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Ed,

I have also been interested to learn whether DES and MDx are freely
exportable.

>                What is the status of the exportability of the DES which is
>to be used for privacy in the proposed SNMP security mechanism?

I discovered that exportation of DES requires an export license that is
obtainable from the U.S. Dept. of Commerce on a case by case basis.
A contact there is:

Hans van Gelder
Export Administration
Office of Techonology and Policy Analysis
U.S. Dept. of Commerce
Washington, D.C.
(202) 377-1663


MD4 similary requires a license, however, it may be possible to obtain
a general license, since MD4 is used only for authentication and cannot
be used to enforce confidentiality.  Vint Cerf came up with the following
point of contact, for this issue: Mr. Joe Westlake, 202-377-0731.

Trevor

