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Re: WARNING: Crypto software to be included into main Debian distribution



On Wed, Feb 27, 2002 at 05:37:41PM +1000, Anthony Towns wrote:
> On Tue, Feb 26, 2002 at 12:33:06PM +1000, Anthony Towns wrote:
> > On Mon, Feb 25, 2002 at 04:21:18PM -0500, Branden Robinson wrote:
> > > > > Last I heard, the legal advice we had received was not within the
> > > > > context of an attorney-client relationship.  Can you clarify?
> > > "Legal advice" is more than just a lawyer giving you his opinion, even
> > > if it's perfectly sound.  Without an attorney-client relationship, the
> > > law doesn't regard you as having received legal advice at all.
> > > This is important in any situation where "intent" is being established.
> > Sorry, don't know, but will investigate.
> 
> Okay, I raised this with the people who were involved in obtaining
> the legal advice, and there's a few responses.

Thanks for this feedback.  I'm forwarding it to the SPI Board.

> The direct answer to your question seems to be that, no, an
> attorney/client relationship was not established between the lawyer and
> Debian or SPI, however there is an existing attorney/client relationship
> with Roszel C. Thomsen II (the lawyer) and Hewlett-Packard, who use the
> this law firm for some of their export questions.
> 
> According to LaMont, this issue was raised at the SPI board meeting
> in late November (2001.11.26? the minutes aren't up on the website, so
> I can't check), and Roz emailed the SPI board on the 28th with a view
> to establishing an attorney/client relationship. You'd need to check up
> with the rest of the board to see if anything's happened with that.

I recall this.  It was brought up for discussion but since none of us
are lawyers (and SPI's attorney was not present) it didn't really go
anywhere.

> Ronald Chichester who was also part of the crypto-in-main legal advice
> team had this to say on the matter (forwarded with permission, he's
> subscribed to this list, but isn't up to date with this weeks stuff):

Thanks for your input, Mr. Chichester.  This appears to be in some
friction with what I already understood, but most likely the only real
conflict is between the complexity of the law, and my simple brain.  :)

> On Tue, Feb 26, 2002 at 08:22:56AM -0600, Ronald.Chichester@bakerbotts.com 
> wrote:
> ] Branden wrote:
> ] > If I establish an attorney-client relationship with a lawyer who gives
> ] > me legal advice to the effect that I can do X without running afoul of
> ] > the law, then I have a strong affirmative defense when the government
> ] > indicts me anyway, claiming I had "intent" to, say, violate the BXA
> ] > regulations.  (This assumes that I don't disregard the lawyer's advice
> ] > and do something he just told me not to.)
> ] 
> ] That's not true.  Ignorance of the law (regardless of your lawyers advice)
> ] is no excuse.  For that matter, even if a government official told you that
> ] some activity was okay, that does not absolve you from breaking the law.
> ] Your attorney (or a government official) does not have the power to create
> ] an exception to an illegal activity.
> ] 
> ] > Without legal advice received in the context of an attorney-client
> ] > relationship, as far as the law cares I received no legal advice at all,
> ] > and I lack one defense to charges that "intentionally" violated the BXA.
> ] 
> ] I'm afraid that the attorney-client relationship doesn't mean anything in
> ] this regard.  You were given legal advice.  That's all.  You can take it or
> ] leave it.  However, you are responsible for your activity.  All that you
> ] have been given by the lawyer is some advice as to how to minimize your
> ] risk.  It is still up to you to decide whether or not to do the given
> ] activity.  The court will hold you (and only you) accountable for that
> ] activity.  If you rely on a lawyer's advice, and that advice proves to be
> ] bad, the court can still find you guilty.  In that event, your only recourse
> ] against the lawyer is a suit for malpractice, which you can try to conduct
> ] from jail.  At that point, the notion of the attorney-client relationship
> ] would be central to your malpractice case, the absense of which would
> ] definitely hurt.
> ] 
> ] Incidentally, "intentional" with respect to the BXA means that you intended
> ] to do the act (regardless of whether or not you considered the act to be
> ] legal or not).  The court will look to see if you intended to do the act,
> ] not whether you intended to break the law.
> ] 
> ] That being said, it is my opinion that Debian was given sound legal advice
> ] from HP on this matter.  
> ] 
> ] BTW, I am a lawyer.
> ] 
> ] Cheers,
> ] 
> ] Ron
> ] 
> ] Ronald L. Chichester
> ] Adjunct Professor of Law
> ] South Texas College of Law
> ] Houston, Texas
> ] 
> ] Baker Botts L.L.P. 
> ] One Shell Plaza
> ] 910 Louisiana Street
> ] Houston, Texas 77002-4995
> ] 713.229.1341 (Voice)
> ] 713.229.7741 (Facsimile)
> ] ronald.chichester@bakerbotts.com 
> ] 
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> ] 
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> ] previous e-mail messages attached to it may contain confidential
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> 
> HTH.
> 
> Cheers,
> aj

-- 
G. Branden Robinson                |     If you have the slightest bit of
Debian GNU/Linux                   |     intellectual integrity you cannot
branden@debian.org                 |     support the government.
http://people.debian.org/~branden/ |     -- anonymous

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