Comments on: DDTC Keeps Trying to Put the Public Domain Genie Back in the Bottle

By: Clif Burns

Clif Burns — Mon, 04 May 2009 17:55:57 +0000

Yes, the Axion case. The part involved was a small flange type part called a bifilar weight assembly. The gov’t claimed that it wasn’t PD just because it was on the Internet; the judge said otherwise and, as I’ve heard from the trial participants, was none too pleased with the governments efforts to argue that stuff on the Internet wasn’t PD.

By: Will C.

Will C. — Mon, 04 May 2009 17:17:31 +0000

Wasn’t there a case recently where the defendant successfully argued that Apache helicopter drawings he had exported were available in the public domain (on the internet)?

If a company had the resourses to pursue the case, I think judges will have to be skeptical of DoS claims that data available on the internet is not in fact actually in the public domain because the data should not be on the internet in the opinion of the DoS.

By: Hillbilly

Hillbilly — Tue, 24 Mar 2009 02:56:33 +0000

Chris: Your story is just yet one more example of how DDTC doesn’t believe the law, most especially the , doesn’t apply to DDTC. They mean: How could the Constitution possible apply to them, they are so much superior to mere mortals.

By: Chris W.

Chris W. — Mon, 23 Mar 2009 20:22:02 +0000

I attended an ITAR lecture given by a DDTC employee recently, in which she explained that information in the public domain does not mean that the information “should be” in the public domain. In other words, just because you find it on the internet doesn’t mean it’s allowed to be distributed as public domain. She said if you release something because it’s already (but inappropriately) available via public domain, you’ve committed an ITAR violation.

She kept inserting the phrase “appropriately released into” (the public domain) to talk about the public domain exception.

chris

By: Hillbilly

Hillbilly — Sat, 21 Mar 2009 13:43:10 +0000

It should be remembered that DDTC has inserted such language in a number of prior consent agreements, including some of the Boeing consent agreements. That said, while government may constitutionally regulate services, to the extent that the “services” consist solely of providing information, any regulation that purports to regulate the provision of information is subject to First Amendment challenge. The Sixth Circuit in Junger v. Daley held that export controls on encryption source code were subject to First Amendment review, but that the “functionality” of the source code in that case, i.e., the fact that that source code could be used to directly instruct some computers, meant that export controls on that source code were subject only to “intermediate scrutiny”. The clear inference of Junger v. Daley then is that provision of pure information is subject to full First Amendment protection.

By: Clif Burns

Clif Burns — Fri, 20 Mar 2009 18:20:51 +0000

I agree that this is probably how 120.9(a)(2) should be read, but the language in the consent decree saying that something can be a defense service even if public domain information is used is inconsistent with that. The DDTC probably should at a minimum have made clear that its statement in the consent decree applies to defense services defined under 120.9(a)(1) and (a)(3), not under (a)(2).

By: john black

john black — Fri, 20 Mar 2009 17:08:57 +0000

I think you missed the ITAR on your statement below–it might be academic because in the settlement situation, companies just get the best deal they can, regardless of the ITAR.

The definition of technical data says tech data does not include “public domain.” So when you export public domain, by defintion, you are not exporting tech data because public domain is not tech data. So the export of public domain does not automatically become a defense service. Now you could use public domain to provide a defense service, just like you could use a screw driver to provide a defense service–but exporting public domain is not by defintion a defense service.

Sorry to be such a nerd on this, but it is important (at least to me).

Keep up the good work. I enjoy your willingness to express your opinion and to be funny and irreverent. Most people are too scared and uptight to do those things.

John Black

from your blog…
“The problem here is that section 120.9(a)(2) defines the provision of
technical data as a defense service. These two sections read together
with DDTC’s gloss on 124.1(a) in the above-quoted section, means that a
“disclosure” of public domain information can be seen as a defense
service (and not just as an export of technical data) that would require
that a Technical Assistance Agreement (“TAA”) be approved by DDTC prior
to the disclosure of the public domain material.

By: David Ivey

David Ivey — Thu, 19 Mar 2009 16:03:24 +0000

124.1 seems to have a logical application if someone is taking publicly available information (such as the instructions for use and maintenance of a commercially available AR-15 rifle) and providing a defense service to foreign persons. For instance, training police in another country. But it gets really troublesome when you consider that it could just as well apply to a firearms safety class conducted in the U.S. if a foreign person attends. And it creates real headaches when you expand the potential applications from there.