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The trial of Chi Mak and other members of his family for export of ITAR-controlled technical data begins this week. An article on the upcoming trial by New York Sun reporter Josh Gerstein, who has been following this case with some care, has this interesting tidbit:
Mr. Kaye [Chi Mak's defense attorney] said the government made little effort to safeguard the material. “As you can see in the pleadings … every document in this case was distributed at a public conference,” the attorney said.
Material in the public domain is usually exempt from export controls, but the government argued that an embargo imposed on China after the Tiananmen Square massacre in [1989] made it illegal to share even widely disseminated defense materials with Beijing.
Say what? Is the government claiming that it is a felony to provide to the Chinese public domain data that the Chinese could have obtained on their own?
According to Section 120.11(a)(6) of the ITAR, technical data doesn’t include material distributed at a public conference. And if the information wasn’t technical data, it’s export would not, as charged by the Second Superseding Indictment, violate the provisions Section 127.1 of the ITAR which forbid export of technical data. Furthermore, nothing in the original order imposing the arms embargo on China or the subsequent amendment to the ITAR to reflect the embargo changes this in any respect.
But Section 127.1 of the ITAR also forbids providing defense services to foreign person. Defense services are defined in Section 120.9(a)(1) as the
furnishing of assistance . . . to foreign persons in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of
defense articles
The government’s contention can only make sense if it is claiming that provision of public domain technical data to a foreign person is a provision of a defense service in violation of section 127.1. But if this is the government’s claim, then there is no reason for the public domain exception to the definition of technical data. Every provision of technical data, whether or not it is in the public domain, is by definition a defense service. And activity once thought to be permitted under the ITAR would be a felony.
We will certainly be following this trial with great interest.
(Hat tip to reader Creighton Chin at CPII who brought the Gerstein article to my attention.)
UPDATE: Josh Gerstein read this post and then kindly sent me a copy of the prosecutors’ brief on the public domain issue. Their argument is even worse than I imagined. I’ll post it, along with my comments, later today.
SECOND UPDATE: My comments on the prosecution’s brief on the public domain issue are here.
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