Comments on: Internet Download From Iran Leads to Criminal Prosecution in U.S.

By: ExportLawBlog » Prosecutors “Clarify” Misstatements Made during Alavi Bail Hearing

Fri, 08 Jun 2007 02:06:00 +0000

[...] As we reported earlier, Alavi was accused of having downloaded, while in Iran, simulation software used for training employees at various power facilities, including nuclear generation plants. The prosecution also alleged that Alavi took to Iran detailed schematics of the Palo Verde nuclear plant. [...]

By: Clif Burns

Clif Burns — Thu, 10 May 2007 22:20:14 +0000

Mike: Agreed, although I thought I made clear that what I was recounting were only the allegations of the affidavit. That includes both what Alavia and Western Services were alleged to have done.

By: Mike Deal

Mike Deal — Thu, 10 May 2007 22:17:02 +0000

One other thing, Cliff: One should say that Mr. Alavi is alleged to have done these things. Anyone familiar with the FBI knows that its agents in the counterintelligence section (which is more aptly named than they might think) are all aspiring spy novelists who use the occasion of filing affidavits to practice their craft. The GAO report sent to the House International Affairs committee last December is pretty indicative that FBI expertise in export controls is prit’ near nothin’.

By: Mike Deal

Mike Deal — Thu, 10 May 2007 16:09:37 +0000

Cliff: Just in the interest of completeness, I note that the FBI affidavit omitted the fact that the software in question is not nuclear specific, but is safety training software that is in fact EAR99, and used in conventional fossil fuel and co-generation plants. That begs the question of whether this particular application software was “information or informational material” within the meaning of the exclusion from presidential authority set forth in the Berman Amendment as modified by the Free Trade in Ideas Act, 50 USC 1702(b)(3). The legislative history suggests that it was meant to be interpreted broadly, at least as broad as the 1st Amendment. In Junger v Daley, the 6th Circuit held that software is information protected by the 1st Amendment, albeit not entitled to strict scrutiny due to its dual functional character. We all know from the PENN and IEEE suits that OFAC realizes its vulnerable on the Berman Amendment issue, thus the reason for mooting both suits by establishing a general license for publishing that covered the representative plaintiffs’ situation in those cases. What the complaints, especially in the PENN case, make eminently clear is that OFAC has willfully violated 1702(b)(3)by issuing regs that do not fully implement the statutory exclusion because they do not conform to either the statutory text or the legisltive history. In fact, the legislative history to the Free Trade in Ideas Act explicitly states that it was being enacted because OFAC failed to give effect to the original Berman Amendment. I reckon my point is that just because this case doesn’t meet OFAC’s regulation doesn’t mean that it doesn’t necessarily fall within the statory exclusion. I don’t think OFAC is entitled to Chevron defference here: As in the Gitmo cases, in which the Supremes applied US. v Mead far broader than just for interpretation of the HST, OFAC’s interpretation is entitled to only Skidmore defference, i.e., only the power to persuade.

By: Export Boy

Export Boy — Thu, 10 May 2007 13:53:26 +0000

I agree with the relative ease in getting around such systems, but one can’t deny that if even the simplest reverse-DNS lookup policy was in place, this transaction would have been halted.

By: Clif Burns

Clif Burns — Thu, 10 May 2007 13:26:29 +0000

GeoIP is different from using reverse DNS and a Whois query to find the address of the host computer. I agree that GeoIP is not that reliable, but if a reverse DNS/Whois inquiry would show that the computer is in Iran, what possible argument does a company have for permitting that host computer to download software?

Furthermore, if that info is good enough to convict Alavi, why isn’t it good enough to raise questions about why Western Services allowed a computer in Iran to download a registration key?

By: Andy

Andy — Thu, 10 May 2007 12:46:48 +0000

You’re trying to sell GeoIP location services, right? How reliable are such responses? The problem with mandating such lookups is that it lulls you in a false sense of security while a smart attacker uses a proxy or the ISP changes IP addresses.

It makes sense to log and report such foreign IP addresses but this can’t be the only way, let alone law mandated.

In this particular case the software provider hadn’t revoked his credentials even though he was no longer employed with the power plant. Well, maybe they put a honeypot