Comments on: One Way to Win An Argument . . . http://www.exportlawblog.com/archives/137 Latest News on DDTC, BIS, OFAC, and other export law matters Sun, 12 Oct 2008 00:02:33 +0000 http://wordpress.org/?v=2.5.1 By: ExportLawBlog » Mak Prosecutors Come to Their Senses on Public Domain Issues http://www.exportlawblog.com/archives/137#comment-1632 ExportLawBlog » Mak Prosecutors Come to Their Senses on Public Domain Issues Mon, 16 Apr 2007 04:47:17 +0000 http://www.exportlawblog.com/archives/137#comment-1632 [...] As we’ve reported before, the prosecution in the Mak trial tried to claim that the ITAR forbids export of public domain data on military items to China. The prosecution also argued that the State Department “certification” that the documents in question were “technical data” under the ITAR was a conclusive and unreviewable determination that they were not public domain. We explained here, here and here, why these arguments were wrong. [...] [...] As we’ve reported before, the prosecution in the Mak trial tried to claim that the ITAR forbids export of public domain data on military items to China. The prosecution also argued that the State Department “certification” that the documents in question were “technical data” under the ITAR was a conclusive and unreviewable determination that they were not public domain. We explained here, here and here, why these arguments were wrong. [...]

]]> By: Mike Deal http://www.exportlawblog.com/archives/137#comment-1455 Mike Deal Sun, 01 Apr 2007 19:26:19 +0000 http://www.exportlawblog.com/archives/137#comment-1455 Quite aside from questions of statutory construction, like Karn, the Mak case raises questions of First Amendment freedoms. The public domain exclusion has always been considered to be based on First Amendment concerns rather than the granting language of Section 2778. The preclusion of judicial review, even if otherwise effective, can only affect a valid delegation of Congressional authority to regulate foreign commerce. The preclusion can not work to oust judicial review on Constitutional grounds. It should be remembered that the district court in Karn found that the First Amendment did not applies to Karn's encryption source code because the court found that such source code had a functional quality beyond its expressive nature. In the Mak case, we're talking about information only, not a computer program, therefore no question of functionality. [This case could not occur under the present Export Administratrion Regulations given the exclusion for information, regardless of media in which recorded, set forth in IEEPA's section 203(b), 50 USC 1702(b)(3)]. The Sixth Circuit in Junger v. Daley rejected Karn, and held that software source code wqas entitled to First Amendment protection, but that the additional quality of functionality for Professor Junger's source code required only a lesser degree of scrutiny, as opposed to strict scrutiny required for pure information. Claerly then, the documents in Mak lack the functionality of the software sourcecode at issue in either Karn or Junger, and are fully entitled to First Amendment protection. Unfortunately, if the press accounts are accurate, Mak's trial counsel does not seem inclined to challenge on First Amendment grounds, and are betting all on requirement for the government to prove specific intent. It's hard to see how they can do this without attempting to introduce expert testimony as to how the industry interpreted ITAR's public domain exclusion. The courts have been reluctant to permit such testimpny, and DoJ has zealously opposed the introduction of such testimony, as in the Khosrowyar Iranian embargo case in Oklahoma in 2005. Quite aside from questions of statutory construction, like Karn, the Mak case raises questions of First Amendment freedoms. The public domain exclusion has always been considered to be based on First Amendment concerns rather than the granting language of Section 2778. The preclusion of judicial review, even if otherwise effective, can only affect a valid delegation of Congressional authority to regulate foreign commerce. The preclusion can not work to oust judicial review on Constitutional grounds. It should be remembered that the district court in Karn found that the First Amendment did not applies to Karn’s encryption source code because the court found that such source code had a functional quality beyond its expressive nature. In the Mak case, we’re talking about information only, not a computer program, therefore no question of functionality. [This case could not occur under the present Export Administratrion Regulations given the exclusion for information, regardless of media in which recorded, set forth in IEEPA's section 203(b), 50 USC 1702(b)(3)]. The Sixth Circuit in Junger v. Daley rejected Karn, and held that software source code wqas entitled to First Amendment protection, but that the additional quality of functionality for Professor Junger’s source code required only a lesser degree of scrutiny, as opposed to strict scrutiny required for pure information. Claerly then, the documents in Mak lack the functionality of the software sourcecode at issue in either Karn or Junger, and are fully entitled to First Amendment protection.

Unfortunately, if the press accounts are accurate, Mak’s trial counsel does not seem inclined to challenge on First Amendment grounds, and are betting all on requirement for the government to prove specific intent. It’s hard to see how they can do this without attempting to introduce expert testimony as to how the industry interpreted ITAR’s public domain exclusion. The courts have been reluctant to permit such testimpny, and DoJ has zealously opposed the introduction of such testimony, as in the Khosrowyar Iranian embargo case in Oklahoma in 2005.

]]>