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Date: Wed, 15 Mar 2000 20:04:12 +0000
From: Ben Laurie <ben@algroup.co.uk>
Organization: A.L. Group plc
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Subject: [Fwd: [Eben Moglen <moglen@columbia.edu>] Re: US crypto export 
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OK! A _real_ legal opinion!

Cheers,

Ben.

--
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Subject: Re: [Eben Moglen <moglen@columbia.edu>] Re: US crypto export 
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In-Reply-To: Ben Laurie's message of Wed, 15 Mar 2000 16:58:30 +0000
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From: Eben Moglen <moglen@columbia.edu>
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Date: Wed, 15 Mar 2000 13:38:15 -0500
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On Wed, 15 March 2000, Ben Laurie wrote:

  The claim is that should OpenSSL (a UK/German/ex-Australian project)
  accept legally exported patches from the US, then OpenSSL would become
  subject to US export regs. You appear to be saying that that is not the
  case, correct?

Correct.  Any copy of OpenSSL present in the United States is subject
to export control, and it doesn't matter whether there are US-produced
patches in it or not.  If it is controlled technology (which OpenSSL
is), if it is "in" the US, and if it is going "out," the regs apply.
But they only apply to copies "in" the US that are going "out" of the
US, because that's export, and export is what is controlled.  Whether
copies that are "out" of the US have US-produced code in them makes no
difference: they are not "in" the US and therefore export controls do
not apply to them.  That's the insanity of export control, but just
because the regs are insane doesn't mean we have to make them even
more complex than they were.  Now that I understand in concrete terms
what was being talked about, I am ready to give a legal opinion: as to
this set of facts, the argument about "infection" misunderstands
relevant American law (nobody's fault, understanding this law was an
activity for people with strong capacity to suspend disbelief).
Incorporation of US-developed crypto in primarily non-US projects does
nothing whatever to change the regulatory status of those products
when they are "out" of the US.  If the regs should become more
restrictive in future, a topic already discussed sufficiently, copies
"in" the US might not be able to leave, which would hardly matter
since copies "out" of the US could enter the US freely and circulate
outside the US freely without regard to US law (as opposed to the
potentially equally insane laws potentially prevailing elsewhere).

It used to be that giving export control advice consisted of helping
clients to comprehend unbelievably ridiculous statements in the
present tense.  Giving such advice now largely consists of helping
clients to comprehend unbelievably ridiculous statements in the future
conditional subjunctive.  That's some kind of progress.

-- 
 Eben Moglen                       voice: 212-854-8382 
 Professor of Law & Legal History    fax: 212-854-7946        moglen@
 Columbia Law School, 435 West 116th Street, NYC 10027      columbia.edu
 General Counsel, Free Software Foundation   http://emoglen.law.columbia.edu

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