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I am a professor in the field of cryptography and there are export restrictions here as well. Under no circumstances would I allow the US government to block pu

I am a professor in the field of cryptography and there are export restrictions here as well. Under no circumstances would I allow the US government to block publication of my papers or talks based on the theory that my speech is “a technology export.” It’s not even clear that this would be allowed under the First Amendment. The government could obviously try to advance that theory, but I strongly suspect they would run into a hailstorm of First Amendment litigation and public blowback. To me it feels like these prosecutions are an attempt to do exactly that — place restrictions on academic speech and collaboration — but to do it through the “backdoor” of funding agencies and fraud accusations. In other words, if the US said “we are prosecuting you for sharing your open research publications with Chinese scientists,” this would be politically and maybe constitutionally infeasible. So instead they’re trying to achieve effectively the same chilling effect by accusing these scientists of criminal fraud in their funding applications. It is also noteworthy that these cases keep falling apart, which makes me think that they’re exactly as weak as I'm making them out to be. At the end of the day we need to be very careful about this. We are a country that values free speech, has a constitution that guarantees it, and also needs open speech to make science work. “The government passed some laws restricting technology export” does not actually mean the government can and should be able to restrict scientific speech, and it definitely shouldn’t let them do it through weird indirect means like this. ETA: It is important to draw a distinction between proprietary or classified IP (and physical equipment) where espionage or theft of trade secret accusations might make sense vs. open scientific research where it sure doesn’t. These cases keep trying to blur the distinction. I suspect if they were clear examples of the former then the cases wouldn’t keep collapsing. ETA2: I have NSF funding and I just want to add that NSF regulation is byzantine. There are too many regulations surrounding NSF applications and reporting for a human (with an actual job) to be 100% certain that they haven't misstated something or omitted a critical detail. I would guess every US scientist is vulnerable to this sort of (selective, politically-motivated) prosecution.

kragen 5y ago
As you are of course aware, but perhaps some people reading this are not, the government did consistently advance the theory that publication of speech about cryptography was "a technology export" subject to export control --- specifically, cryptographic source code --- until Bernstein v. United States, which required a several-years-long court battle. You were a country that values free speech. Now you are a country that values "content moderation" to suppress "misinformation".
- matthewdgreen 5y ago
  This is exactly my point: the government advanced exactly this theory and the crucial point is they lost in court. They were forced to weaken the laws as a result. The new laws remain constitutionally untested and the government seems very eager to keep them that way.
  - kragen 5y ago
    Agreed. But public opinion has shifted; people in the US think "free speech" is a "right-wing issue" now, and as you can see every time China is mentioned on HN there are ten thousand xenophobic comments by assholes from the US who don't even know the difference between the Cultural Revolution and the Great Leap Forward. In theory public opinion shouldn't affect the outcome of a court case unless it results in statutory or constitutional changes, but of course it does. Given the current trend toward authoritarianism, the longer the government can delay the court battle, the better their chances.
    - matthewdgreen 5y ago
      With due respect, the right wing is perfectly happy to use the power of government to suppress speech they don’t like. See eg the new bills banning discussion of sexual identity in Florida schools. I usually regret responding to OT partisan comments, but statements of belief like “<my preferred political party> is the party of free speech” is exactly how you end up voting in a government that brutally suppresses free speech.
      - kragen 5y ago
        I didn't mean the right wing was actually in favor of free speech, and I should have been clearer about that. The right wing has never been in favor of free speech, nearly by definition. The consequence is that the US political scene is dominated by two illiberal parties, much like, for example, Egypt after Mubarak's flight, or the late Weimar Republic. I'm surprised that you'd think right-wing US parties were my preferred political party; maybe you've forgotten who I am because I stopped using Twitter. Still, I'd think even my comments in this thread would provide abundant evidence of my commitments to liberalism and distaste for authoritarianism.
jacquesm 5y ago
The US can be extremely creative when it comes to mislabeling things. Wire Fraud, Munitions and Money can suddenly equate to selling something, cryptographic code and people. This makes no sense to uninitiated outsiders.
nonethewiser 5y ago
I don't understand how you think your point relates to it's parent. Are you just piggybacking off the point that the US does control export of semiconductor technology to make this separate point? Or are you suggesting the US shouldn't control export of semi-conductor technology in the same way they shouldn't restrict your publications on cryptography?
- DangitBobby 5y ago
  The point is that they aren't "controlling an export", they are trying to restrict free speech.
- matthewdgreen 5y ago
  The parent comment says "any researcher's talk, paper, research, materials, etc. must undergo an export controls review first before it leaves the United States or is shown to a foreign national. This is SOP at every research lab in the United States." My purpose in the comment is to point out that such review is not legally required for public academic research, and there are good constitutional and policy reasons it should not be. Moreover we should be careful about letting the government implement such policies via indirect means. While I'm not in the field of semiconductor research, the export control laws in my field are quite similar (in fact, they're literally the same Federal laws.) And if you read the US code, you'll see that it excludes "[p]ublic domain information which is published and is accessible or available to the public, unrestricted: publications & conferences, patents, fundamental research." These exceptions exist because earlier laws did not have such exceptions and were found (in a case involving cryptography) to be unconstitutional.
  - nonethewiser 5y ago
    Thank you for the context
  - letsburnthis 5y ago
    "[p]ublic domain information which is published and is accessible or available to the public, unrestricted: publications & conferences, patents, fundamental research." That's the definition for what falls under public domain and isn't export controlled, but say you are the one first publishing and bringing it in to the public domain. Would that first publication of something that isn't currently in the public domain fall under the exception?
dnautics 5y ago
If you didn't take money from the federal government, I would be inclined to agree with you, that export controls are an abridgement of the freedom of speech, but if your work is taxpayer-funded, then the government absolutely has the authority to restrict how you use the fruits of those funds; if you cannot abide by them then perhaps consider stop taking federal funds?
- matthewdgreen 5y ago
  I think you are 100% backwards in your thinking here. If the US taxpayer funds research then public funders actually have a very high bar in their ability to restrict the publication of that research. For the simple reason that the taxpayer funds it and government restrictions on speech face a very high Constitutional bar. By contrast if I take funding from Amazon or Apple it’s much easier for them to demand NDAs and speech restrictions. (Which I have been asked for and wouldn’t agree to.)
  - dnautics 5y ago
    you are right in practice, but my argument is not about what is de facto the case, but what should be the case. > government restrictions on speech Well this obviously should not generally be the case. If you are, say a high ranking general at the pentagon -- which is a position directly paid by the government, so arguably way more "protected" by the constitution than a subcontractor awardee of a grant, which could be considered to "create a legal veil", then can you claim "first amendment" if you pass military secrets on to an adversarial government? Of course not.
    - matthewdgreen 5y ago
      There is a huge amount of constitutional jurisprudence around the notion of national security clearance and all of it rests on the idea that it is a strictly limited exception to the First Amendment, generally one that is used sparingly and only when needed. This is why private citizens must volunteer to obtain security clearances. The General you speak of is presumably a volunteer who also agreed to be bound by stricter rules around classified data. The NSF does not (generally) fund classified research. They fund unclassified research at open academic Universities. If the researcher in TFA had joined a military lab and submitted to a clearance, this would be an open and shut case. He did not do anything of the sort, and so the prosecutors were forced to hunt down some workaround to achieve their desired result, then ultimately drop a groundless case.
dekhn 5y ago
ETA2: every scientist should include a statement that they believe they have complied with necessary regulations but that to evaluate and comply with them completely and consistently is an onerous burden and that they are operating in good faith, and welcome an audit. Audits (if they aren't biased or motivated) can determine whether the failure to comply was ignorance, or intentional, and if ignorant, was it criminally so? I mean, I've filed for NIH grants and there were parts that were self-contradictory and parts that my institution wouldn't let us do, so we always had to send it off to Contracts and Grants. Several proposal that I considered completely legit failed C&G review.

kragen 5y ago

As you are of course aware, but perhaps some people reading this are not, the government did consistently advance the theory that publication of speech about cryptography was "a technology export" subject to export control --- specifically, cryptographic source code --- until Bernstein v. United States, which required a several-years-long court battle. You were a country that values free speech. Now you are a country that values "content moderation" to suppress "misinformation".

matthewdgreen 5y ago
This is exactly my point: the government advanced exactly this theory and the crucial point is they lost in court. They were forced to weaken the laws as a result. The new laws remain constitutionally untested and the government seems very eager to keep them that way.
- kragen 5y ago
  Agreed. But public opinion has shifted; people in the US think "free speech" is a "right-wing issue" now, and as you can see every time China is mentioned on HN there are ten thousand xenophobic comments by assholes from the US who don't even know the difference between the Cultural Revolution and the Great Leap Forward. In theory public opinion shouldn't affect the outcome of a court case unless it results in statutory or constitutional changes, but of course it does. Given the current trend toward authoritarianism, the longer the government can delay the court battle, the better their chances.
  - matthewdgreen 5y ago
    With due respect, the right wing is perfectly happy to use the power of government to suppress speech they don’t like. See eg the new bills banning discussion of sexual identity in Florida schools. I usually regret responding to OT partisan comments, but statements of belief like “<my preferred political party> is the party of free speech” is exactly how you end up voting in a government that brutally suppresses free speech.
    - kragen 5y ago
      I didn't mean the right wing was actually in favor of free speech, and I should have been clearer about that. The right wing has never been in favor of free speech, nearly by definition. The consequence is that the US political scene is dominated by two illiberal parties, much like, for example, Egypt after Mubarak's flight, or the late Weimar Republic. I'm surprised that you'd think right-wing US parties were my preferred political party; maybe you've forgotten who I am because I stopped using Twitter. Still, I'd think even my comments in this thread would provide abundant evidence of my commitments to liberalism and distaste for authoritarianism.

jacquesm 5y ago

The US can be extremely creative when it comes to mislabeling things. Wire Fraud, Munitions and Money can suddenly equate to selling something, cryptographic code and people. This makes no sense to uninitiated outsiders.

nonethewiser 5y ago

I don't understand how you think your point relates to it's parent. Are you just piggybacking off the point that the US does control export of semiconductor technology to make this separate point? Or are you suggesting the US shouldn't control export of semi-conductor technology in the same way they shouldn't restrict your publications on cryptography?

DangitBobby 5y ago
The point is that they aren't "controlling an export", they are trying to restrict free speech.
matthewdgreen 5y ago
The parent comment says "any researcher's talk, paper, research, materials, etc. must undergo an export controls review first before it leaves the United States or is shown to a foreign national. This is SOP at every research lab in the United States." My purpose in the comment is to point out that such review is not legally required for public academic research, and there are good constitutional and policy reasons it should not be. Moreover we should be careful about letting the government implement such policies via indirect means. While I'm not in the field of semiconductor research, the export control laws in my field are quite similar (in fact, they're literally the same Federal laws.) And if you read the US code, you'll see that it excludes "[p]ublic domain information which is published and is accessible or available to the public, unrestricted: publications & conferences, patents, fundamental research." These exceptions exist because earlier laws did not have such exceptions and were found (in a case involving cryptography) to be unconstitutional.
- nonethewiser 5y ago
  Thank you for the context
- letsburnthis 5y ago
  "[p]ublic domain information which is published and is accessible or available to the public, unrestricted: publications & conferences, patents, fundamental research." That's the definition for what falls under public domain and isn't export controlled, but say you are the one first publishing and bringing it in to the public domain. Would that first publication of something that isn't currently in the public domain fall under the exception?

dnautics 5y ago

If you didn't take money from the federal government, I would be inclined to agree with you, that export controls are an abridgement of the freedom of speech, but if your work is taxpayer-funded, then the government absolutely has the authority to restrict how you use the fruits of those funds; if you cannot abide by them then perhaps consider stop taking federal funds?

matthewdgreen 5y ago
I think you are 100% backwards in your thinking here. If the US taxpayer funds research then public funders actually have a very high bar in their ability to restrict the publication of that research. For the simple reason that the taxpayer funds it and government restrictions on speech face a very high Constitutional bar. By contrast if I take funding from Amazon or Apple it’s much easier for them to demand NDAs and speech restrictions. (Which I have been asked for and wouldn’t agree to.)
- dnautics 5y ago
  you are right in practice, but my argument is not about what is de facto the case, but what should be the case. > government restrictions on speech Well this obviously should not generally be the case. If you are, say a high ranking general at the pentagon -- which is a position directly paid by the government, so arguably way more "protected" by the constitution than a subcontractor awardee of a grant, which could be considered to "create a legal veil", then can you claim "first amendment" if you pass military secrets on to an adversarial government? Of course not.
  - matthewdgreen 5y ago
    There is a huge amount of constitutional jurisprudence around the notion of national security clearance and all of it rests on the idea that it is a strictly limited exception to the First Amendment, generally one that is used sparingly and only when needed. This is why private citizens must volunteer to obtain security clearances. The General you speak of is presumably a volunteer who also agreed to be bound by stricter rules around classified data. The NSF does not (generally) fund classified research. They fund unclassified research at open academic Universities. If the researcher in TFA had joined a military lab and submitted to a clearance, this would be an open and shut case. He did not do anything of the sort, and so the prosecutors were forced to hunt down some workaround to achieve their desired result, then ultimately drop a groundless case.

dekhn 5y ago

ETA2: every scientist should include a statement that they believe they have complied with necessary regulations but that to evaluate and comply with them completely and consistently is an onerous burden and that they are operating in good faith, and welcome an audit. Audits (if they aren't biased or motivated) can determine whether the failure to comply was ignorance, or intentional, and if ignorant, was it criminally so? I mean, I've filed for NIH grants and there were parts that were self-contradictory and parts that my institution wouldn't let us do, so we always had to send it off to Contracts and Grants. Several proposal that I considered completely legit failed C&G review.