Memorandum Subject: Date: S. 979, Amendments to the Aug. 28, 1984 Export Administration Act To: From: (signed: Theodore B Olson) Robert A. McConnell Theodore B. Olson Assistant Attorney General Assistant Attorney General Office of Legislative and Office of Legal Counsel Intergovernmental Affairs We have become aware that the Senate-passed version of s. 979, the Export Administration Act Amendments of 1984, contains one amended and one additional definition relating to the export of technology. The effect of the amendments, if enacted, would be expressly to subject the export of technology to the licensing requirements and restrictions imposed by the Export Administration Act of 1979, 50 U.S.C. App. ss. 2401 et seq. (EAA). The definitions are quite similar to those contained in a proposed revision of the EAA regulations. This Office has previously opined on the constitutionality of these definitions and the attendant licensing scheme and has found that the regulatory scheme extends too broadly into an area of protected First Amendment speech. That opinion refers to another opinion of this Office which considered the constitutionality of the ITAR, the International Traffic in Arms Regulations, a similar licensing scheme. We concluded that the ITAR also presents serious First Amendment problems. We would suggest, therefore, that you bring to the attention of the Conference Committee which is considering s. 979 the concerns reflected in our prior memoranda on the Export Administration Regulations and the ITAR. For your convenience, we have attached a proposed letter, prepared for your signature, for transmittal to Chairman Garn of the Senate Committee on Banking, Housing, and Urban Affairs. Attachment cc: A.R. Cinquegrana Joseph J. Tafe Deputy Counsel Chief, Export Enforcement Unit Office of Intelligence Internal Security Section Policy and Review Criminal Division