Crypto wars II, first shot? Casus belli? US ITAR regs redefine "public domain"

Peter Fairbrother zenadsl6186 at
Sun Jun 7 23:26:18 BST 2015

New regs, for comment, not yet in law or in force.

Redefined public domain categories excluded from control under § 
120.11(a) would include the Wassenaar "data made available without 
further restriction on its further dissemination" and, for the first 
time explicitly, data which has been posted on the Internet.

Sounds good - but...

The kicker is: § 120.11(b)

(b) Technical data or software, whether or not developed with government 
funding, is not in the public domain if it has been made available to 
the public without authorization from:

(1) The Directorate of Defense Trade Controls;
(2) The Department of Defense’s Office of Security Review;
(3) The relevant U.S. government contracting entity with authority to 
allow the technical data or software tobe made available to the public; or
(4) Another U.S. government official with authority to allow the 
technical data or software to be made available to the public.

and § 120.10 / § 120.50, which together make first posting or publishing 
a "release" and an "export" (and also subsequent repostings, if you know 
the first release was not duly authorised).

More, US persons can't publish technical data even in book form without 
prior authorisation. Phil Zimmerman's trick, publishing the source to 
PGP in printed form to put it in the public domain, would no longer work.

There is also some trickery about redefining software as an item, rather 
than as data; one effect of which is to put software which is the result 
of fundamental research into the control regime.

Of course, as "fundamental research" only means research done in the US 
by US Universities and centers of learning, or US Government funded ..

I get confused, but it would seem to me that eg if there is a crypto 
conference in the US, the publishers would need export permission for 
the work of foreign authors, but not the work of US authors.

-- Peter Fairbrother

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