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Yesterday we commented on the argument by the prosecutors in the Mak trial that export of public domain technical data to an embargoed country, such as China, violates the Arms Export Control Act. Josh Gerstein, the intrepid New York Sun reporter covering the case, read our post and sent a copy of the government’s brief in which it makes that claim.
The prosecution’s argument couldn’t be simpler and couldn’t be more wrong. The brief filed by the prosecution cites the portion of section 127.1 of the ITAR which states that the “exemptions” provided in the ITAR don’t apply to exports to embargoed countries:
These regulations make plain that the exemption in ITAR, including the public domain exception, do not apply to exports to the PRC because the PRC is subject to an arms embargo.
This argument thoroughly confounds exemptions — which exempt exports of defense articles and defense services from licensing requirements — and regulations which define the scope of the terms “defense article,” “defense service,” and “technical data.”
The reference to “exemption” in section 127.1 is clearly a reference to the various portions of the ITAR which are explicitly referred to as “exemptions” — such as the “Exemptions of General Applicability” for exports of defense articles provided in section 123.16, “Exemptions for training and military service” provided in section 124.2, the “Exemptions of General Applicability” for exports of technical data provided in section 125.4, and the “Exemptions for Plant Visits” provided in section 125.5.
“Exemption” does not refer to the provisions of section 120.10(a)(5) which state that the “definition” of technical data does not include:
information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
The government’s claim that this is an “exemption” not only contradicts the plain meaning of the regulations but leads to results that could not possibly be intended by anyone. Under the government’s claim that section 120.10(a)(5) is an exemption, hundreds of universities with Chinese graduate students are in peril of criminal prosecution for providing to them “general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities.”
The prosecution in the Mak case attempts to support its position by relying on the Ninth Circuit’s decision in U.S. v. Posey, 864 F.2d 1487 (9th Cir. 1989). This is odd, to say the least, because the trial court in that case dismissed charges under the Arms Export Control Act for export of technical data on the grounds that the technical data was in the public domain. The Ninth Circuit did hold that public domain data was restricted for export under a different statute — the Comprehensive Anti-Apartheid Act (“CAAA”), which is no longer in force — because that Act explicitly limited exceptions to those contained in the CAAA itself and the CAAA did not contain a public domain exception.
When the export community learns about the government’s argument in this case, I suspect there will be an uproar.
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