Date: Wed, 30 Nov 1994 19:40:51 -0800
From: Phil Agre <pagre@weber.ucsd.edu>
To: rre@weber.ucsd.edu
Subject: heavy-duty action on US cryptography export controls
Date: 27 Nov 1994 03:01:41 -0500
From: Philip Zimmermann <prz@acm.org>
Newsgroups: ailab.cypherpunks
Subject: Zimmermann interrogated without counsel
The following is a letter from Ken Bass, who is one of the lawyers on
my legal defense team, to US Customs. It is mostly self-explanatory.
It concerns the PGP investigation.
For those of you unfamiliar with the PGP case, PGP is an email
encryption program that is widely used around the world, and was
published domestically in the USA as freeware in 1991. As the creator
of PGP, I am under investigation by US Customs. They tell my lawyers
that they suspect that I violated laws that prohibit the export of
encryption software from the USA.
If anyone wants to ask questions about this case, contact my lead
defense attorney, Phil Dubois, at 303 444-3885, or dubois@csn.org.
-Philip Zimmermann
prz@acm.org
===================================================================
Kenneth C. Bass, III
(202) 962-4890
kbass@venable.com
Venable, Baetjer, Howard & Civiletti
1201 New York Avenue, NW, Suite 1000
Washington, DC 20005-3917
(202) 962-4800, Fax (202) 962-8300
November 23, 1994
Mr. Homer Williams
Acting Assistant Commissioner
Office of Internal Affairs
United States Customs Service
1301 Constitution Ave., N.W.
Washington, D.C. 20229
Dear Mr. Williams:
I write on behalf of our client, Philip R. Zimmermann, of Boulder,
Colorado, to register a strong objection to the treatment given Mr.
Zimmermann at Dulles International Airport on November 9, 1994, when he
returned from a trip to Europe.
Mr. Zimmermann was invited to Europe to speak on issues of public
policy. When Mr. Zimmermann returned to the United States, he was
diverted from the normal Customs processing, subjected to an
individualized luggage search, and then interviewed extensively by
Customs Special Agent Michael Winters. The questions posed to Mr.
Zimmermann make it very clear that this encounter was not a routine,
random interview, but was a pre-planned encounter. The interview was
not restricted to matters relating to Mr. Zimmermann's re-entry into
the United States and any proper subjects of inquiry regarding the
personal effects he was bringing back with him, but ranged extensively
over Mr. Zimmermann's European itinerary and public-speaking
activities, as well as prior overseas trips he had taken. Of
particular concern to us is the fact that Agent Winters questioned Mr.
Zimmermann about possible exportation of PGP, a cryptography program
developed by Mr. Zimmermann.
This interview was conducted in the absence of Mr. Zimmermann's
counsel, despite the fact that Agent Winters was very much aware of a
pending criminal investigation involving Mr. Zimmermann who was advised
in 1993 by an Assistant United States Attorney in the San Jose,
California office that he was a target of a grand jury investigation
concerning possible violations of the Arms Export Control Act related
to PGP. Agent Winters made specific reference to this investigation in
the course of his interrogation.
This encounter is deeply troubling for two reasons. First, having such
an interview in the absence of counsel when Customs is fully aware of
the pending criminal investigation and the fact that Mr. Zimmermann is
represented by counsel raises fundamental concerns about Government
insensitivity to the constitutional rights of citizens, particularly
citizens who are a target of an ongoing criminal investigation. The
second major concern is the fact that Agent Winters told Mr. Zimmermann
that he should expect to be subjected to the same search and
interrogation upon every re-entry into the United States, at least
until the criminal investigation is concluded. It is difficult enough
for any individual to be the target of an open-ended criminal
investigation that seems to have no clear direction, goal or
foreseeable conclusion. It is quite another thing to be subjected to
official interrogation, in the absence of counsel, about these
matters.
On behalf of Mr. Zimmermann, we ask that you make appropriate inquiries
to determine who authorized this interrogation and why it was continued
after Mr. Zimmermann expressed objection to being interrogated in the
absence of counsel. With respect to Mr. Zimmermann's future re-entry
into the United States, we would expect the Customs Service to strictly
limit its contact with him to the conduct of such interviews,
declarations and inspections as may be appropriate under 19 CFR Part
148 to determine whether he is subject to payment of any import duties
upon his re-entry. As an American citizen he has a constitutional
right to return to the United States and it is most improper to use
such occasions as an excuse for conducting interviews that would not
otherwise be undertaken in the absence of counsel or appropriate
judicial process.
I am sending copies of this letter to Agent Winters, the Assistant
United States Attorney in charge of the criminal investigation, and Mr.
Philip Dubois, Mr. Zimmermann's lead counsel in the investigation. If
you require any additional information in order to respond to this
request, please contact me directly. We would hope to resolve this
matter quickly.
Cordially,
Kenneth C. Bass, III
cc: Mr. Philip R. Zimmermann
Mr. Michael B. Winters
Philip Dubois, Esq.
William Keane, Esq.
-----
Date: 27 Nov 1994 19:54:14 -0500
From: Matt Blaze <mab@crypto.com>
Newsgroups: ailab.cypherpunks
Subject: Re: Zimmermann interrogated without counsel
>As I understand it, you have no obligation to do or say anything to a
>Customs officer when entering the country other than to identify
>yourself, hand over your passport, and permit a search of your
>luggage. It's not even clear you have to answer their questions as to
>where you've been. Dunno what would happen if they searched your
>laptop and found encrypted material...
I'm going to be taking a business trip to Europe next month, and just to
find out what the procedure is I decided to get a "temporary export
authorization" for a so-called "exportable" AT&T telephone security
device (model 3600-F). This is the "bump in a cord" voice encryptor.
The "F" model is supposed to be approved for "fast track" export; it
doesn't use Clipper or DES, but rather some exportable algorithm.
About two months ago I called our (AT&T's) export lawyer division. They
said "ok, this will be easy". Well, sure enough the other day I got back
my "license for the temporary export of unclassified defense articles".
The form on which this is printed is apparently used for everything in the
ITAR; it took me a while to realize that the part of the form where they
want the "serial number of aircraft or vessel" is to be filled in only if
I'm actually exporting a plane or ship and does not refer to the plane
on which I'm flying out of the country. (Where is the serial number on a
767, anyway?)
Anyway, the "fast track" procedure seems to be as follows. I have to leave
from an international airport with a customs agent present. Before I leave
I have to make up an invoice for the devices (even though I'm not selling
them to anyone) that states that "These commodities are authorized by the US
government for export only to Belgium and the United Kingdom [the
countries I'm visiting]. They may not be resold, transshipped, or
otherwised disposed of in any country, either in their original form
or incorporated into other end-items without the prior written approval of
the US Department of State." At the airport, I have to fill out something
called a "shippers export declaration" (SED) and copy the same wording onto
it. Then I present my invoice, SED, and export license to a customs
official at the airport before I leave (this will be fun - I leave from
JFK, where Customs is in a different building from departing flights). The
Customs officer then endorces my license to show what I'm taking out of the
country.
On the way back in, I'm supposed to "declare" my item (even though it
was manufatured in the US) and show them my license, SED, and invoice,
and they're supposed to endorse the license to show that I have, in fact,
returned the "defense article".
I'd hate to know what the "slow track" is like....
I'll post a report of what actually happens when I try to follow these
procedures.
-matt
Lenny Foner Last modified: Wed Dec 14 00:28:35 1994