Archive for the ‘DDTC’ Category


Jun

4

Once Upon a Time in a Public Domain Far, Far Away


Posted by at 9:19 pm on June 4, 2015
Category: DDTCTechnical Data Export

England's Oldest Working Catapult by Thoms Euler [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/thomaseuler/3656736595/ [cropped]Once upon a time, and long before the Internet, in a distant and dank corner of Washington, D.C., there lived an obscure agency called the Directorate of Defense Trade Controls (“DDTC”), which, among other things, kept watch, like a jealous dragon, over certain types of information that it believed it was destined to protect, information such as how to build a catapult or the best timber to use for a battering ram or the deadliest method for swinging a mace at an enemy. And it sent out a decree, far and wide, that anyone who should dare to disseminate such information without its permission, except in locked rooms with less than three other citizens present between the hours of midnight and dawn, would be sentenced to immediate gibbeting. Fortunately, there was no Internet, so few, in those days, were seen hanging in cages in Foggy Bottom.

Of course, this little fairy tale is a preface to the recent release by DDTC of proposed revised definitions of, among other things, the term “public domain” which, as you might imagine, does not mean to DDTC what it means to anyone else who speaks English. The proposed new definition seems to have been written by people who have heard of the Internet only as something the kids use to tweet things and post selfies.

The importance of the definition of “public domain” is that information about defense articles (like muskets and missiles) is not subject to export controls if it is in the “public domain” as defined in section 120.11 of the International Traffic in Arms Regulations (the “ITAR”). DDTC has previously taken the position that pictures on the Internet were not “public domain” because section 120.11 does not specifically mention the Internet. (Never mind, of course, that the definition includes information available “[a]t libraries open to the public” and that every single library in the United States, save apparently for the one at DDTC, has Internet terminals.)

The newly proposed rules, coming more than twenty years after the appearance of the World Wide Web, finally (and grudgingly) acknowledges the existence of the Internet.  The new definition would define “public domain” to include information made available to the public through

Public dissemination (i.e.,unlimited distribution) in any form (e.g., not necessarily in published form), including posting on the Internet on sites available to the public;

Before you get to excited, however, there’s this: an exception that eats up the entire definition from any practical point of view.

(b) Technical data or software, whether or not developed with government funding, is not in the public domain if it has been made available to the public without authorization from:

(1) The Directorate of Defense Trade Controls;

(2) The Department of Defense’s Office of Security Review;

(3) The relevant U.S. government contracting entity with authority to allow the technical data or software to be made available to the public; or

(4) Another U.S. government official with authority to allow the technical data or software to be made available to the public.

So, you see a picture of a fighter jet on the Internet. Is it “public domain” or not?  Will you get in trouble for re-posting it? Well, you have no idea because you have no way of knowing whether any official falling in the four categories above has authorized it to be posted. You probably can’t even tell who falls in category (3) or (4). In fact, nobody can probably tell which government officials fall in those categories.

DDTC attempts to address this issue with a note saying that if somebody else put the information on the Internet you are not breaking the law unless you “know” that they did so without authority.  But does “know” mean actual knowledge or does it slide, like it often does, into not engaging in due diligence to determine that it was authorized?  Your guess is as good as mine.   So use the Internet at your own risk, unless you’re just posting selfies on Instagram.

For companies in the defense industry, this proposed definition is equally problematic if they use the Internet at all.  Every time they post information on their own products, thinking that the information they are posting is already in the “public domain,” they need to ask permission from DDTC if they haven’t already done so.  And, of course, since there are no time limits in the proposed definition, this issue would exist for everything the company has ever posted on the Internet.

Dark times for the Internet ahead when (and if, as is likely) this new definition goes into effect.

 

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Jun

2

ITAR? What’s An ITAR? Isn’t That a News Bureau in Russia or Something?


Posted by at 10:12 pm on June 2, 2015
Category: DDTCPart 129

Matthew VanDyke via https://www.facebook.com/vandyke.matthew/photos/pb.102993809826639.-2207520000.1433297042./653912191401462/?type=3&theater[Fair Use]
ABOVE: Matthew VanDyke


A guy named Matthew VanDyke announced this on Facebook:

I have been in ‪#‎Iraq‬ helping to raise and train a Christian army to fight ‪#‎ISIS‬. Sons of Liberty International (SOLI), my new company that provides free military consulting and training to local forces fighting terrorists and oppressive regimes, has been consulting and training the Nineveh Plain Protection Units (NPU) in Iraq. In December I took a US Army veteran with me to Iraq to open a covert training facility north of Mosul, and SOLI began training Christian fighters.

Oh, surely, you say, if you’re a regular reader of this blog, he must have a State Department license before he provides defense services in Iraq, right? No one would just go on Facebook and announce to the entire world that he’s training soldiers in Iraq without getting a license first, would they?

So, a reporter at Mother Jones asks VanDyke just that:

VanDyke told Mother Jones that initially “nobody was sanctioning it.” He added, “Part of the whole purpose of SOLI is to step in where governments had failed, so going and asking permission from the governments that have already failed is not particularly productive.”

Uh oh.

Later, after telling Mother Jones “repeatedly” that no one in the State Department had the slightest idea he was training soldiers in Iraq, VanDyke seems to have changed his story. According to Mother Jones:

He subsequently stated in an email that “Sons of Liberty International complied with US registration requirements prior to signing a contract with the Nineveh Plain Protection Units (NPU), as required by U.S. law.”

Well, there you have it, yet another undocumented benefit of registration: once registered with DDTC, you can provide military training in the foreign country of your choosing. (DISCLAIMER: Professional scofflaw on closed course. Do not try this on your own. Serious legal injury, including criminal prosecution, could result.)

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May

5

Export Control Reform Comes to USML Category XII


Posted by at 11:25 pm on May 5, 2015
Category: BISDDTCNight Vision

AN/PSQ-20 Enhanced Night Vision Goggle (ENVG) by Program Executive Office Soldier [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0) and/or Public Domain (work of government employee)], via Flickr https://www.flickr.com/photos/peosoldier/16086876469 [cropped]Well, who would have thought? Contrary to broad expectations that export control reform would never in a million years come to Category XII, which contains tactical gamestoppers such as night vision and laser designators and markers, export control reform came today to Category XII in the form of proposed rules. The BIS proposed rules are here; the DDTC proposed rules are here.

While it may be surprising that Category XII is being reformed, it is not so surprising that the new “positive” list of items controlled in the new proposed Category XII has expanded considerably, growing from less than a page in the Code of Federal Regulations to five densely packed pages in the Federal Register. And what is and isn’t on this extensive new list will be the subject, I assume, of extensive industry comments due, by the way, on July 6, 2015.

Because of the much-publicized interagency squabbling between BIS and DDTC over which agency license which night vision system, a quick look at the new provisions relating to night vision is instructive. Obviously, the new rules do not simply cover infrared focal plan array detectors (“IRFPAs”) and image intensification tubes (“IITs”) designed for military use but instead cover IITs and IRFPAs with specified peak response levels. IITs meeting the peak response rate for IITs must have either second or third generation photocathodes. Interestingly, the definition of second and third generation photocathodes is completely different in the proposed rules from the definition given in the current USML, reinforcing the general conception that nobody really knows what the difference is between second and third generation night vision beyond the obvious: third is better than second.

A note to be included to subparagraph (c), which covers night vision, in Category XII appears to maintain, more or less, the current principle, at least for certain components, that when they are incorporated into commercial systems, the commercial system is not subject to ITAR controls, but the parts in question will be subject to ITAR controls if exported separately from the commercial system. However, a new qualification to this principle, that is not currently expressed in Category XII, is added: for this rule to apply, the component must not be removable from the system “without destruction or damage to the [component] or render [sic] the item inoperable.” What the practical impact of this new qualification will be is hard to predict, but my guess is that it may gut the exception and expand control over commercial system given that I can’t imagine many situations where the item can’t be removed without destroying it. But I’ll defer to any engineers who may know better whether this is the case or not.

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Apr

27

Heat, Don’t Leave Home Without It


Posted by at 10:07 pm on April 27, 2015
Category: Arms ExportCustomsDDTC

Airport Firearms Declaration by Nick Holland [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/nic1/2569359725 [cropped]Customs and Border Protection has decided that it needs to make it easier for you to travel abroad with a gun, at least assuming that you aren’t planning to use it to create any harm or to give it to a nefarious overseas organization. So they have announced that they will help travelers with firearms fill out CBP Form 4457 “to ensure that no traveler attempting to legally take their firearm out of the country experiences significant delays.” Form 4457 is a registration of exported goods designed to permit them to be returned to the United States without payment of duties or complying other regulatory requirements.
righ
And CBP is so concerned about the difficulties of packing heat in your luggage that they’ve even taken a swipe at the Automated Export System and the State Department requirement for filing an EEI through AES before taking lugging a Lugar abroad.

Additionally, CBP is working with our other government partners to modify the AES system and the reporting process to make a more user-friendly experience for individual travelers.

I certainly agree that the AES should be made more user-friendly; I’m just not so sure that it needs to be made more friendly just for people traveling with their weapons.

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Apr

21

Texas Judge Indicted For Illegal Firearm Exports


Posted by at 10:38 pm on April 21, 2015
Category: Arms ExportCriminal PenaltiesDDTC

Judge Tim Wright [Credit: Williamson County][Fair Use]
ABOVE: Judge Tim Wright


Well, it is probably safe to say that not many (if any) judges have been indicted on allegations of illegally exporting firearms. But that’s what happened to Judge Tim Wright, a judge in Williamson County, Texas, who was charged with various firearm charges, including illegal exports of firearms. There are few details in the indictment beyond alleging that Judge Williams, which the indictment rather oddly insists on calling “Timothy L. Wright, III, aka ‘The Judge,’” sold guns to a person without an export license knowing that the guns were intended for export.

This is a strangely odd locution: it alleges that Judge Wright knew that the guns were for export but does not allege that the Judge knew that the purchaser did not have an export license or that the Judge knew that his sale or the export were illegal. This probably explains why Judge Wright was charged under the Anti-Smuggling Statute, 18 U.S.C. § 554, and not under the Arms Export Control Act, 22 U.S.C. § 2278. There is well-established precedent under the Arms Export Control Act that a conviction can only be had if the defendant knew that his export was in violation of law. On the other hand, it appears hat prosecutors believe, as I have said previously, that they can establish a criminal violation of 18 U.S.C. § 554 simply by proving the defendant knew that the item was to be exported without any requirement that they prove he knew that the export was illegal.

Whether a court will send someone to jail on such a flimsy showing of criminal intent remains to be seen.

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