IP: Exporting crypto from the US? Think first...

[Dave Farber <farber () cis upenn edu>]

> X-Authentication-Warning: toad.com: Host localhost [127.0.0.1] didn't use HELO protocol
> To: John Young <jya () pipeline com>
> cc: hugh () toad com, cypherpunks () toad com, gnu () toad com, cryptography () c2 net
> Subject: Exporting crypto from the US?  Think first...
> Date: Thu, 06 May 1999 19:39:01 -0700
> From: John Gilmore <gnu () toad com>
> Sender: owner-cypherpunks () toad com
>
> > Heeding Hugh Daniels' call today to set up 1,000 US crypto sites
> > free of unconstituional export restrictions as provided by the 
> > Bernstein opinion, we invite contributions of unlimited-strength ...
>
> Hugh actually said, "May 1000 crypto web and ftp sites bloom in the
> sunlight of this decision...".  The catch is, when does the decision
> take effect?
>
> The gov't can ask for "en banc" review of the decision by 11 (instead
> of 3) judges of the Ninth Circuit, and then (whether or not they get
> en banc review), also ask the Supreme Court to look at the case.
> Only after they exhaust all these possible delaying tactics will
> the opinion become final and unchangeable.
>
> There are difference of opinion among the lawyers I've discussed this
> with.  I'm no lawyer, so don't believe *my* opinion.  Ask your own
> lawyer.  I'M SERIOUS.  Some say the precedent has been set and can be
> relied upon.  Others say that it has no legal force yet, and may not
> have any legal force until after a potential Supreme Court appeal.  In
> that case, if the government prosecuted you, this decision would be
> examined by any lower court judge in the 9th Circuit, but they would
> not be legally bound to follow it, though they probably would.  Still,
> if the government decided you were worth coming after, they might
> appeal a lower court loss, and let the case stack up in appeal,
> waiting for Bernstein to be finally decided.  On the other side, as in
> the Berlin Wall, if enough people decide to break a law, it's quite
> hard for a bureacracy to arrest or successfully prosecute them all.
> On the other other side, a lot of people got smashed by the state
> during Mahatma Gandhi's civil disobediences, though the eventual
> result was freedom for 800 million people.  A final uncertainty is
> that tricky gov't prosecutors have been known to try to prosecute
> people in other Circuits for things they've done in this Circuit, if
> they can come up with some half-plausible reason (like "his packets
> may have been routed through this state"); sometimes this succeeds,
> and there are people in jail today as a result.  In short, as the
> gov't attorney in the Bernstein case is reported to have said today,
> "It's not over til it's over".
>
> The upshot is that posting crypto source code, even from the 9th
> Circuit of the United States, still involves significant risk.  The
> risk is lower than it was yesterday, but it's still there.
>
> My standing opinion about lawyers is that you should ask them
> where the dangers are, and then make your own decision about whether or
> not to assume the risks.  Everything in life entails some risk, and
> each of us must decide what things are worth risking our lives, our
> fortunes, and our sacred honor for.  I can't tell you what the best
> thing to do is -- you must make that decision yourself.
>
>         John