Apr

25

DDTC’s Proposed Definition of “Defense Services” Still Has Problems

Posted by at 6:33 pm on April 25, 2011
Category: DDTC

Library Internet TerminalEarlier this month, the Directorate of Defense Trade Controls (“DDTC”) issued a public notice proposing to revise the definition of defense services set forth in section § 120.9 of the International Traffic in Arms Regulations (“ITAR”). The most significant change is that the new rule would exclude the provision of public domain data from the definition of defense services. This is both a welcome revision and an embarrassing admission by DDTC that the previous definition was absurdly broad.

Under the current definition, if a U.S. person tells a foreign person that the ratio of an aircraft’s speed to the speed of sound affects the forces on the aircraft and that the speed of sound at sea level is 340.29 m/s, the U.S. person has arguably provided a defense service in the design and development of a defense article if the foreign person was previously unaware of those facts. Telling a person that it is a good idea to clean a rifle regularly could also be construed as a defense service because it provides assistance in the use of a defense article.

The problem here is that DDTC takes a rather counterintuitive (or more bluntly, absurd) view of what is and isn’t public domain. Previously it has advised an exported that photographs of military cockpits found on the Internet was not public domain. The basis for this decision is that the definition of public domain in section 120.11 of the ITAR does not specifically reference the Internet. (It does however include information generally accessible at libraries open to the public and most libraries make Internet access available to anyone who walks through the door.) So, until DDTC deals with how it wants to define the public domain, the ITAR could still forbid a U.S. person from sending an Internet link to a foreign person.

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Copyright © 2011 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

One Comment:

DDTC’s definition of defense services, as well as its broad prohibition on release of unclassified defense “technical data”, has always had First Amendment challenges. Unfortunately, the only folks with the gumption to challenge these rules in the past generation have been encryption source code designers. I say unfortunately because the potential functionality of source code confused and obfuscated the prior restraint issues. Still, there are about two lines in the Sixth Circuits opinion in Junger v. Daley that suggest that had it not been for the potential functionality of the encryption source code in that case, export controls on unclassified technical data would have been subject to prior restraint analysis, which always comes out bad for the government.

Given that so much of defense technical data is generated from or for government contracts or government funded research, the government would be on far better First Amendment grounds if those contracts asserted and retained some proprietary interest in the technical data created from such government funded research. True indepedently funded R&D that creates technical data relating to “defense articles” retains a robust First Amendment protection, if only you can find someone with the courage and the wallet to make the arguments.

Comment by Mike Deal on April 26th, 2011 @ 5:54 am