The export control snakes are trying to crawl out of their snakepit again. By tiny wording changes, they're trying to overturn the exemptions that protect First Amendment activity from being restricted by the export controls. We have until May 27 to file written comments.
Remember that the government "voluntarily" changed the export controls after losing the Bernstein case on First Amendment grounds. Now the hawks want to change them back. They've been quietly writing up "Inspector General" reports for years. Here's the latest: http://www.oig.doc.gov/oig/reports/2004/BIS-IPE-16176-03-2004.pdf Here's the proposed regs: http://www.regulations.gov/freddocs/05-06057.htm Send comments to: To: [EMAIL PROTECTED] Cc: [EMAIL PROTECTED] (please) Subject: RIN 0694-AD29 By replacing an "and" with an "or", they want to require every university, research lab, and company to be required to segregate foreign students, researchers, scientists, and staff from the Honest Amurricans. This is to keep these evil furriners away from fast computers, oscilloscopes, and even GPS systems -- even if the foreigner is doing fundamental research protected by the First Amendment. This includes censorship of the *manuals* for anything export-controlled. It's the same old definition game they played with crypto exports: "technology" means anything, and "export" means "let a foreigner see", therefore the ban on "exporting technology" translates to: foreigners can't see anything. Even in this country. The Commerce Dept. needs to hear, loud and clear, that if the regulations restrict fundamental research, the REGULATIONS should be changed, not the fundamental research. The Inspector General who recommended that the export controls be tightened needs to be reminded that he supposedly works for a free country. I suggest citing the fact that a US appeals court decided that the export controls were a prior restraint on free expression and violated the First Amendment when applied to scientists and educators doing fundamental research (Bernstein v. USDoJ): http://www.eff.org/Privacy/Crypto_export/Bernstein_case/Legal/19990506_circuit_decision.html (later withdrawn by the court due to Justice Dept. trickery). A later appeals court held that the First Amendment protected the publication of software from the export controls, though it did not decide what level of scrutiny was appropriate: Junger v. Daley, 209 F.3rd 481 (6th Cir. 2000): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=6th&navby=case&no=00a0117p In the recent shenanigans, Commerce Dept. inspectors visited NIST and NOAA, and found that even though both agencies are doing "fundamental research", the inspectors think these agencies should have to segregate foreign researchers and get "deemed export" licenses for their research. They were shocked to discover one German machine tool at NIST's Manufacturing Engineering Lab, and two fermenters at universities, that foreigners aren't allowed to have. They were also shocked to find that the operating manual for the machine tool was right there next to the machine! They suggested that if a foreign resercher MERELY READ the manual, that an illegal "deemed export" would have occurred. Reading NIST's response on PDF pages 55-59 is very enlightening; the inspectors' report deliberately twists the situation to make it look far worse than it was. It reminds me of the Wen Ho Lee case. (By the way, the inspectors censored half a sentence from their own report on PDF page 42, numbered page "32" at the bottom of the page. The text behind the censorship reads "In addition, the 5-axis machine tool is located immediately to the right of the entrance to the machine shop and is not segregated from other equipment." The report also included two uncensored color photos of the machine, in case you were a foreigner wondering how to identify it. It's so comforting to know that highly competent security professionals like this are in charge of censoring all scientific research in the country.) The inspectors also claim that because the Bush White House forced a "pre-review" policy on publication of government scientific research "that might help terrorists", the First Amendment "fundamental research" definition no longer applies to NIST -- even though the pre-review has never turned down a paper yet. The Inspector General's report never once mentions the First Amendment. E.g. on page 23, it says: "The rationale for eliminating foreign nationals with permanent resident status from deemed export controls appears to have been that persons who hold such status have made a committment to the United States and most likely will not return home." Actually, the issue is that permanent residents have the same First Amendment rights that citizens do. This includes freedom of inquiry (the right to do research) and the right to publish the results. These inspectors instead seem to follow the Lt. Calley "burn the village in order to save it" model. The vast majority of the "deemed exports" have been in computers (661 in 2003), telecomm and information security (357), and electronics (338). In 2003, no other category had more than 80 licenses applied for. This is all about computers and crypto -- it's not about nuclear weapons (0 in 2003). The vast majority of the foreigners involved came from China (367), Russia (238), and India (83), out of 846 total. (These stats are on page 15.) The inspectors, and the Commerce Dept., also propose a rule that says the country where you were born trumps your current citizenship. The export regs are different for each country, so someone who fled Hong Kong and took up Canadian citizenship would be considered Chinese under these rules. The racist implications seem to be strongly focused on denying access to high-tech equipment to people of Chinese and Muslim descent when they're studying or working in the United States. John Gilmore Electronic Frontier Foundation Forwarded-By: David Farber <[EMAIL PROTECTED]> Forwarded-By: Jennifer Mankoff <[EMAIL PROTECTED]> Subject: Urgent: Proposed Dept. of Commerce rules pose threat to research Dear Chairs of PhD-granting Physics Departments, I am writing to alert you to a possible threat to research in your department and to urge you and your faculty to write to the Department of Commerce (DOC) in response to its "Advance notice of proposed rulemaking" published in the Federal Register on March 28, 2005. The notice calls for comments that must be received by May 27, 2005. As discussed below, the leadership of the American Physical Society feels this issue is so important that you should seek to provide thoughtful and accurate responses by your university administration, your department and individual faculty who might be affected by the recommended changes. We believe that your comments can make a difference. The proposed rulemaking by the DOC is a response to recommendations presented by the Department's Inspector General. Implementation of these recommendations would cause two major changes: 1) The operation of export-controlled instrumentation by a foreign national working in your department would be considered a "deemed export", even if that person were engaged in fundamental research. As a consequence, a license would be required for each affected foreign national (student, staff or faculty member) and for each export controlled instrument. Typical export-controlled instruments are high-speed oscilloscopes, high-resolution lithography systems, high-end computers and GPS systems. The situation is complicated by the fact that the list of instruments is different for each country. 2) U.S. organizations would be required to apply for a deemed export license for students, employees or visitors who are foreign nationals (but not U. S. naturalized citizens or permanent residents) and have access to controlled technology if they were born in a country where the technology transfer in question would require an export license, regardless of their most recent citizenship or permanent residency. For example, transfer of technology to a Chinese scientist who has established permanent residency or citizenship in Canada would be treated, for export licensing purposes under the proposed guidelines, as a deemed export to a Chinese foreign national. (The list of export-controlled instruments for Chinese nationals is particularly extensive.) The Department of Commerce officials who have the responsibility for developing new policies and practices in response to the Inspector General's recommendations are anxious to determine what the impact of implementing those recommendations would be. They must seek a balance between increases in national security that might result from the implementation of the new rules and the decrease in national security that would result from negative impacts to US research and development. In initial discussions by the APS Panel on Public Affairs (POPA) it was thought likely that consequences would be: a) research would slow down significantly due to the need to obtain licenses for each foreign national and, particularly, Chinese student, staff member, postdoc, or faculty member using export controlled instrumentation. We believe that a separate license would have to be obtained for each instrument. In this regard, it should be noted that the relevant DOC office has the staff to handle about 800-1000 license requests per year. Present times to process a license request are typically 2-3 months. b) instruments would have to be secured to ensure that those who do not have the required license could not use them. c) the number of Chinese and other foreign national students would decrease markedly as their "second-class" status on campus became apparent, thus ultimately weakening the nation's science and technology workforce. d) the administrative costs of research would rise markedly. e) national security would ultimately be weakened as a consequence of a loss of leadership in economic and technology development. We urge you, therefore, to have faculty members who are experimentalists respond to the DOC's notice by estimating, as accurately as possible, the impact on their research. This would involve a determination of which instruments are probably export controlled for each nation "represented" by foreign nationals in the laboratory. (The person responsible for export control administration in the institution should be able to help with this.) You should then send the DOC either a comment from the department as a whole or, better yet, individual comments, which state the number and types of instruments involved, the number of students, staff or postdocs from each affected nation and the likely number of licenses to be requested if the recommendations are implemented. It would also be helpful if comments contained a brief description of the type of research performed in the laboratory. Estimates of the consequences of three months delays in research for each new foreign national student and each new export controlled instrument will also be valuable. You may regard this as rather burdensome, but it is our belief that implementation of the Inspector General's recommendations will be far more burdensome. Therefore, we hope that you will get every experimentalist to reply. To submit your comments, you can go to www.regulations.gov and enter the Key Phrase "Revision and Clarification of Deemed Export Related Regulatory Requirements." You can also view the proposed new regulation at this site and note what a large effect changing an "and" to "or" can make. Best regards, Judy Franz Executive Officer APS --------------------------------------------------------------------- The Cryptography Mailing List Unsubscribe by sending "unsubscribe cryptography" to [EMAIL PROTECTED]