FreeSWAN & US export controls

Arnold G. Reinhold reinhold at
Tue Dec 11 09:29:19 EST 2001

At 12:18 AM -0600 12/11/01, Jim Choate wrote:
>On Mon, 10 Dec 2001, John Gilmore wrote:
>> NSA's export controls.  We overturned them by a pretty thin margin.
>> The government managed to maneuver such that no binding precedents
>> were set: if they unilaterally change the regulations tomorrow to
>> block the export of public domain crypto, they wouldn't be violating
>> any court orders or any judicial decisions.  I.e. they are not BOUND
>> by the policy change.
>That's not accurate. There have been several court rulings finding source
>code and such protected by the 1st. This would provide a lever that was
>not there previously.

In the most recent ruling, Universal v. Remerdez/Eric Corley 
(00-9185), , the US Court of 
Appeals for the Second Circuit declined to overturn an injunction 
against the posting of DeCSS on the Internet. The Court held that 
software was speech, but did not enjoy the level of First Amendment 
protection accorded to pure speech because it is functional with 
little human intervention. This is a very disturbing precedent which 
I hope will be reversed on appeal, but given the post-9/11 mood and 
the limited technological understanding of most judges, I wouldn't 
count on it. Also I believe the U.S. Supreme Court has upheld export 
controls in the past, the First Amendment notwithstanding.

Having a body of open source crypto software that is not entangled by 
any U.S. input is not a foolish idea.  Surely there are good 
programers outside the U.S. who understand the importance of making 
FreeSWAN work seamlessly with Linux.

Arnold Reinhold

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