EFF "Privacy - Crypto - ITAR Export - FOIA-Obtained Documents" Archive

http://www.eff.org/pub/Privacy/ITAR_export/ITAR_FOIA/

Last Updated Thu Mar 13 10:42:47 PDT 2003

These documents were obtained under the Freedom of Information Act by EFF Board member John Gilmore, through his lawyer, Lee Tien. Each document was scanned in, then proofread for obvious mistakes. Footnotes were used in many documents; as a rule, the general format of the page was kept, and footnotes are indicated by the note number in brackets, i.e. [n.1]. The text of each footnote appears at the bottom of the page, separated by a short line of "=" signs. Section symbols were replaced by a "s.". If a document was signed, the signature is indicated by (signed:) followed by the name of the person signing the document. If there is no "(signed)", the document was not signed. Anything not in the original text is bracketed.

Files in this Archive

itar_hr_govop_hearing.transcript: An excerpt from the transcript of hearings before a subcommittee of the House Committee on Government Operations, as part of a general investigation into ways that the government can take control of privately developed ideas. Export controls on cryptography are one such way. It includes two items that were "inserted into the record". One memo shows that the Justice Department's Office of Legal Counsel concluded that ITAR was unconstitutional. Testimony shows that the State Department and the President may have ignored possibly binding legal advice from the Office of Legal Counsel.
mcconnell_garn.letter: This is a draft letter from Robert McConnell, Assistant Attorney General for Legal and Intergovernmental affairs to Jake Garn, the Chairman of the Senate Committee on Banking, Housing, and Urban Affairs. It was drafted by Theodore Olson, and sent by him to Robert McConnell, with the cover letter supplied below as olson_mcconnell.letter. It was written while a revised Export Administration Act was in a House/Senate conference committee, and it encourages Sen. Garn to remedy "certain constitutional defects" in the new bill. The term "technology" as defined by the bill is overly broad and presents a probable violation of the First Amendment.
mcconnell_zablocki.letter: Clement Zablocki was the Chairman of the House Committee on Foreign Affairs. This letter is a review of a bill that would amend the Arms Export Control Act (AECA). It is particularly good in that it makes a compelling argument for why the ITAR establishes a system of prior restraint.
olson_mcconnell.letter: This is a cover letter for the draft letter from Robert McConnell to Senator Jake Garn. It, and the draft, were written by Theodore Olson, Assistant Attorney General for the Office of Legal Counsel. It reaffirms the OLC position that the proposed EAA, and the existing ITAR, establish a regulatory scheme that "extends too broadly into an area of protected First Amendment speech."
shiffren_tien.letter: The cover letter/reply to Lee Tien's FOIA request. Notable for the fact that there are other documents (specifically from the FBI and NSA) that could be relevant.
simms_mcconnell.memo: A brief note acknowledging that the ITAR is overly broad, from Simms of OLA to McConnell.
simms_robinson.memo: This is a memo prepared for Davis Robinson, then the Legal Adviser for the Department of State. This is a very well-documented paper on the various unconstitutional provisions of ITAR. The two areas this memo concentrates on are the "technical data" definition as well as the definition of "export." Near the conclusion, Simms states: "We remain of the opinion, however, that ... the ITAR still present some areas of potentially unconstitutional application. ...The best legal solution ... is for the Department of State, not the courts, to narrow the regulations."

Subdirectories in This Archive

Up to the Parent Directory
CPSR_v_FBI/: link to directory of docs from related CPSR v. FBI FOIA case
CPSR_v_NSA/: link to directory of docs from related CPSR v. NSA FOIA case
Clipper_FOIA/: link to directory of documents from related FOIA cases about Clipper, incl. Gilmore & Tien v. NSA
EPIC_v_FBI/: link to directory of docs from related EPIC v. FBI FOIA case
Gilmore_v_NSA/: link to directory of docs from related Gilmore v. NSA FOIA case

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