Vin McLellan <[EMAIL PROTECTED]> wrote:
>For many years, Australia has allowed the virtually unrestricted
>distribution, over the Internet, of many of the most popular free
>industrial-strength cryptosystems, crypto libraries, and crypto-enhanced
>application packages.
It's not "has allowed", it's "has been unable to prevent" (there was a legal
opinion written by an Australian lawyer about a year ago which concluded that,
based on the Australian Customs Act, "there are strong grounds to suggest that
exporters would prevail in a test case", which is lawyer-speak for "you can
probably get away with it").
Since we (and I mean New Zealand here, although Australia is practically
identical) don't have an International Emergency Economic Powers Act for
export controls, they have to be handled via a very tenuous connection to the
Customs Act. This very carefully defines every kind of (physical) export,
but, due to its age, omits electronic export. Since the controls are enforced
in the name of the Customs Act and the Customs Act doesn't count electronic
shipment as an export, if you FTP crypto out of Australia or NZ no export has
taken place and therefore no transgression of the controls has occurred.
>Several Australian governments have proven unwilling or unable to pass
>legislation that would have allowed the Australian Defense Department (which
>has nominal control of crypto exports on physical media) to extend its regime
>to cover the distribution of "intangibles," like software programs, over the
>Internet.
They're both unwilling and unable. As I've mentioned above, since we don't
have an IEEPA, the controls can't be handled like they are in the US but would
have to go through the usual parliamentary, democratic (at least in theory)
lawmaking process. Review by select committee. Voting by members of
parliament. Accountability. A good chance that it'd never make it
through[0]. Everything they don't want. Because of this, they're both
unwilling (they can't risk losing) and unable to change things. It's far
easier to get some bureaucrat to declare the policy to be X and then hope none
tries to challenge it, which is exactly how it's done in NZ (a national
magazine last year ran a story which included a comment to the effect that
"Peter Gutmann disagrees with the export controls and is exporting 200 copies
of his strong crypto software a week in protest". I'm still waiting to be
arrested for this).
In summary, the electronic-export policies of Australia and NZ aren't because
of any foresight, but because the powers that be are faced with a loophole
they can't close. The best they can do is hint strongly to potential
exporters that it's something a good citizen wouldn't do, which has apparently
happened to some Australian companies.
Peter.
[0] At least in NZ, according to people in the know. I've had it explained to
me in great detail by someone who's very familiar with the process, and
tend to believe him since his previous explanation of why another
technophobic bill would fail turned out to be spot on.
