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