Letter to the US Department of Commerce on Exporting Linux to Iraq

Why can you ship a proprietary OS from the US to Iraq, but we can't send Linux? The Silicon Valley Linux User Group asks for much-needed reform in the regulations, with the assistance of Roszel Thomsen and Toni Paytas of Thomsen and Burke LLP www.t-b.com.


Don Marti
Silicon Valley Linux Users Group
99 E. Middlefield Road #17
Mountain View, CA 94043

December 9, 2003

Ms. Sheila Quarterman
Regulatory Policy Division
Bureau of Industry and Security
Department of Commerce
P.O. Box 273
Washington, DC 20044  

Re: Comments on foreign policy-based export controls


Dear Ms. Quarterman,

On behalf of the Silicon Valley Linux Users Group, I would like to thank you for the opportunity to comment on the "Effects of Foreign Policy-Based Export Controls" published in the October 21, 2003 Federal Register (68 Fed. Reg. 60050).

Headquartered in San Jose, California, the Silicon Valley Linux Users Group (SVLUG) is the oldest and one of the largest Linux user groups in the world. It is a group of hobbyists, professionals and enthusiasts in the vicinity of San Jose, California, which is also internationally known as Silicon Valley. SVLUG members share interests in Linux and other free, or open source, software. The group was originally formed in 1988 as the PC-Unix Special Interest Group of the Silicon Valley Computer Society.

SVLUG would like to provide comments on Section 746.3 of the EAR regarding the foreign policy controls for Iraq. SVLUG believes that open source code and the corresponding object code resulting from the compiling of such source code should be exempt from the licensing requirements for Iraq.

Linux is the Free/Open Source UNIX-like operating system kernel that runs on many modern computer systems. Linux is available under the GNU General Public License, which means that users may freely copy, change, and distribute it, but must make source code available to recipients and may not impose any restrictions on further distribution. Linux does contain some security features that use encryption. As such, it is classified under ECCN 5D002. Because Linux is open source, it is eligible for export under License Exception TSU in accordance with 15 CFR 740.13(e).

On May 7, the President exercised his authority under the Wartime Supplemental Authorization Act of 2003 to suspend most of the provisions of the Iraq Sanctions Act of 1990. On June 27, 2003, the Treasury's Office of Foreign Assets Control (OFAC) published an interim final rule (68 Fed. Reg. 38188) amending the Iraqi Sanctions Regulations, 31 CFR part 575, to include a general license authorizing certain new transactions. The export of items controlled by the Department of Commerce was addressed in 31 CFR 575.533(b)(2):

The exportation from the United States or, if subject to U.S. jurisdiction, the exportation or rexportation from a third country to Iraq of any goods or technology (including technical data or other information) controlled by the Department of Commerce under the Export Administration Regulations (15 CFR chapter VII, subchapter C) for exportation to Iraq must be separately authorized by or pursuant to this part.

The term "controlled by the Department of Commerce" means subject to a license requirement under the Department of Commerce's Export Administration Regulations (EAR). Items subject to a license requirement under the EAR include items on the Commerce Control List that are listed in 15 CFR 746.3 as requiring a license for exportation or reexportation to Iraq.

Under Section 746.3 of the EAR, an export license is required to export or reexport to Iraq any item on the CCL containing a NS Column 1 in the Country Chart Column of the License Requirements section of an ECCN. Software classified under ECCN 5D002 is controlled for NS Column 1.

It is important to note that proprietary operating system software such as Microsoft Windows and Sun Solaris have been classified as mass-market encryption products and are eligible for export under ECCN 5D992. These products may be exported to Iraq without a license under the interim final rule (68 Fed. Reg. 38188) amending the Iraqi Sanctions Regulations.

Under the provisions of License Exception TSU, open source and the corresponding object code may be exported to all destinations except Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria. Thus, open source and the corresponding object code are treated as if subject only to AT (anti-terrorism) controls. Items subject to AT controls may be exported to Iraq under the interim final rule (68 Fed. Reg. 38188) amending the Iraqi Sanctions Regulations.

It is incongruous that publicly available software such as Linux has more restrictions than proprietary operating system software. Thus, we respectfully suggest that BIS amend Section 746.3 to permit exports to Iraq of open source and the corresponding object code.

In the alternative, we suggest modifying Section 740.13(e)(4) to permit exports to Iraq. This would reflect the change in policy toward Iraq allowing AT controlled items to be exported to Iraq.

Thank you for the opportunity to submit these comments. We hope they prove helpful and would be pleased to discuss them in more detail with you. If you have any questions, you may contact me at 650-967-1840 or via e-mail at dmarti@linuxjournal.com.



Sincerely,

Don Marti
President
Silicon Valley Linux Users Group

Don Marti is Editor in Chief of Linux Journal.

______________________

Comments

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.

Re: Letter to the US Department of Commerce on Exporting Linux t

Anonymous's picture

BIS asserts controls over Linux because of the encryption component. There have been 3 court challenges to the encryption regs on encryption source code on the basis of the First Amendment freedom of expression. In 2 out of 3 (Bernstein v. US, and Junger v. Daly), the challengers prevailed, the government raised the threshold levels in order to "moot" the issue so that the issue would not get raised to the Supreme Court where they would probably lose.

The real kicker is that the Export Administration Act expired on August 19, 2001. The regulations have been "continued" by an emergency executive order. This alone is a clear violation of the separation of powers doctrine.

The whole export control scheme is unconstitutional and illegal. Unfortunately, there is no one with the testicular fortitude to challenge Big Brother as a representative plaintiff.

Linux in Iraq

Planif's picture

http://lists.alt.org/mailman/listinfo/linux-iraq-discuss

They need supports and frienship

:)

Re: Letter to the US Department of Commerce on Exporting Linux t

ottob's picture

....I fully agree with SVLUG's view about totally free LINUXes.

ANYWAY. I guess you never got an official reply from Department of Commerce yet. DIDN'T YOU.

Regards

Otto

A german LINUX fighter working in a country of evil (Libya). (...that's where the latest US oil comes from know).

Re: Buy French!

Anonymous's picture

What about Iraq to purchase French Linux distributions?
I'm sure Mandrake Soft would be delighted to sell thousands of its Linux own distribution.
Maybe the Iraqi governement would prefer to buy a Polish distribution instead of its French equivalent?
I'm pretty sure Iraqi governement will do the best choice for its people. After all, Windows is not so bad... :-)

Re: Letter to the US Department of Commerce on Exporting Linux t

TaranRampersad's picture

Screw the legalese. I'll happily send them what they need from Trinidad & Tobago.

Just call me the LUG-runner... LOL

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

US is not sending Linux to Iraq because Iraq's invasion was just for profits. US must give excellent business conditions to its own companies because that's what it was all about the whole time. Terrorism was just an excuse for something planned for a long time. It has nothing to do with Linux or Open Source Software. Only big $$$! US will send a real gift as Open Software to other countries when it really cares about them and wants to be generous, which is something that never happened, and if things continue the same perhaps never will.

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

I find export restrictions placed on code that can be freely distributed quite funny and a good example on how the american government thinks they control the universe.

Let them waste their time making silly rules, while whoever wants the code can simply ignore them get the code.

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

I guess I can see their point. Windows is so utterly insecure that it makes gathering intelligence a great deal easier. With the backdoors, the NSA, CIA, and anyone else who needs to can easily gather data and sift for suspicious activity. This, along with the DOJ sellout, could be a good reason for wanting Iraq to be all Windows all the time. Of course, with homeland security, this is probably a great reason to worry here too.

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

We are Europeans, so let us export Linux to whomever wants to use it. Who cares about US restrictions?

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

Well duh! The US has to at least give Microsoft a head start to penetrate that market before Linux wreaks havoc on the WinMonopoly.

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

What export controls? when ISO disks are available online? is it that they are worried we might use clusters using standard PCs and open source Biotech Knowledge base systems to build Bio Weapons? I dont think so, its more likely to be naivety and shortsightedness from their part.
Iraqi Linux Group

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

Yes, but what happens when you want to send 1000 CDs with your favorite Linux distro burned in or 1000 boxes of RedHat Linux distro.
The article refers to that...

Mauricio
From Mexico

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

... what happens when you want to send 1000 CDs with your favorite Linux distro burned in ...

Well, you could take up a collection and then send the money to a LUG in Europe, with instructions? I'm sure that it would be easy to talk someone in Britain or Germany or Denmark or Norway or Holland or such into helping out.

How about it, European LUGs? Anyone want to volunteer to take donations from the U.S. to ship Linux CDs to Iraq?

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

> What export controls? when ISO disks are available online?

Exactly! I suppose I'm a bit naive, but why is there even a discussion about this?

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

Well, don't forget that the U.S. is a place of less freedom than most of the countries they claim need freedom and democracy brought to them.
Not to mention that the U.S. seems to think it can enforce it's laws on the rest of the world. I mean look at Dimitri Skylarov (sp?) and the poor little DeCSS kid. Neither broke the law in their own country.

Send Linux wherever you want, it's none of the U.S. government's damn business.

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

> Well, don't forget that the U.S. is a place of less freedom than most of the countries they claim need freedom and democracy brought to them.

Facts please. A comparison of the First Amendment with its counterpart from [insert your favorite non-democratic nation that you feel has less freedom than the United States here]would be a good start.

Yes, the DMCA is an issue. But I treasure the right to speak my mind as I see fit a heck of a lot more than the right to copy a DVD.

Hate the USA all you want, for whatever your reasons are, but at least try not to mischaracterize.

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

Sorry but its a pet peeve of mine. The US is not now nor has it ever been a democracy. The USA is a republic. I've never understood why so many people start to confuse the two. I'm proud to live in a republic.

Democracy/Republic

Anonymous's picture

Hell, I thought everyone had forgotten we are a Republic.
KUDO's for telling everyone here about the misconception.
At the same time please remember one important fact.
We do have a live Democracy within our borders.
Fact, the area inside the loop around Washington DC is a Democracy.
If you ever have been there you understand why we never never want to become a Democracy!

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

And no other nation on this earth is a democracy either. So before you go off and try to claim there are some, think again. If the US is so bad, move your ass to the EU. I guarantee you won't like it there either.

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

Um, I don't think the author of the previous posting was saying anything bad about the USA at all. He or she's right, technically it is a republic. Nothing wrong with that. "I love living in a republic" == "I love the USA"?

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

I heartily agree, it is time those of us in the free world started telling US business that though they might own the US Government they don't own the rest of us

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

It's obvious!

NO one can mount a working cyber terrorism effort with a non-working
operating system. Linux in the wrong hands could be more dangerous.
We should encourage the use of Windows by the insurgents. Look at
the billions of dollars in lost work and destroyed information foisted
upon our country by these convicted monopolists. We can do nothing
so detremental to cyber terrorists as to force them to use Microsoft products.

Regards

cww

Re: : Letter to the US Department of Commerce on Exporting Linux

Anonymous's picture

I would like to comment on that, given that I am British from Sudanese origin, and worked in the Sudan a lot.
For some time, even after the sanctions, we had American countries working in Sudan on things that are not sanctioned (wheat,etc). They weren't allowed to use Windows, Solaris or anything. They were actually using Linux, a modified version of SuSE (SUSE now I guess), being from a German company. Now they can switch to Mandrake (after Novell) or even Canada-based BSD (I don't remember which). I was a technical support for that.

So, it isn't to restrict Linux from these countries, as it is already importable from other countries. And by the way, M$ is not so bad it will cause a lessening in productivity for these countries. At least they will contribute to the virus-spreading community in the world.

btw, you know that these countries are not excluded from the Internet?
How do they connect to that without an operating system?

Not necessary to Export

Anonymous's picture

A while ago, someone asked a question on the kernel mailing list asking what percentage of the kernel had been written in the US, because the export restrictions to Iran (I think) did not allow products which had more than 10% of the code produced in the US.

The reply basically stated that linux was already in Iran, including some of the kernel programmers, hence no export required. I think that linux is truely international, and the US is unable to restrict distribution to any countries.

What's the issue

Anonymous's picture

You can get open source code from any country. I don't understand why the US believes it now has the ability to control open source since it is a global issue.
There's probably was some money being passed on this one. And don't get me going on a Senator sending his son, the lawyer business. (can anyone say, batten down the Hatch's)

Re: What's the issue

Anonymous's picture

Well that is because the US only cares about it's own Freedom, not other people's freedom.

Why?

Anonymous's picture

Because on the imperial gravy train, only those riding in first class get to dine in the restaurant carriage.

Webinar
One Click, Universal Protection: Implementing Centralized Security Policies on Linux Systems

As Linux continues to play an ever increasing role in corporate data centers and institutions, ensuring the integrity and protection of these systems must be a priority. With 60% of the world's websites and an increasing share of organization's mission-critical workloads running on Linux, failing to stop malware and other advanced threats on Linux can increasingly impact an organization's reputation and bottom line.

Learn More

Sponsored by Bit9

Webinar
Linux Backup and Recovery Webinar

Most companies incorporate backup procedures for critical data, which can be restored quickly if a loss occurs. However, fewer companies are prepared for catastrophic system failures, in which they lose all data, the entire operating system, applications, settings, patches and more, reducing their system(s) to “bare metal.” After all, before data can be restored to a system, there must be a system to restore it to.

In this one hour webinar, learn how to enhance your existing backup strategies for better disaster recovery preparedness using Storix System Backup Administrator (SBAdmin), a highly flexible bare-metal recovery solution for UNIX and Linux systems.

Learn More

Sponsored by Storix