Crypto wars II, first shot? Casus belli? US ITAR regs redefine "public domain"
zenadsl6186 at zen.co.uk
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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