Milling the Floss : Export Controls, Free and Open Source Software, and the Regulatory Future of the Internet

This article investigates U.S. export controls as they relate to free and open source software (FOSS), arguing that the U.S. government has responded to the challenges of modern software by attempting to force an ill-fitting framework to accommodate FOSS. A contemporary reexamination of the state of export controls over FOSS can help in mapping out the responses generated by national security interests to the challenges of the internet. In particular, the article offers a detailed account of the ways in which export controls have excluded FOSS from their regulatory purview through a powerful public availability exemption. In doing so, regulators have essentially labeled publicly available software as unthreatening to national security, regardless of the potential uses of any particular code. Ultimately, this piece does not argue for stronger export restrictions on FOSS. Instead, it shows that the current regulation does not comprehensively control FOSS and tries to tease out the implications of this regulatory approach. In particular, the paper explores apparent regulatory inconsistencies when export controls are applied to particular areas of FOSS. The article argues that these inconsistencies ultimately lead to the displacement of software regulation onto data regulation. Tracing the causes of this displacement allows for a deeper examination of the nuanced ways in which FOSS has altered the form and function of export controls and the ways these have altered the development of FOSS in turn. The interaction between these two facets of the digital age offers a case study in how cyber governance and the internet interplay and construct one another