ITAR Control of Public Speech

DS_KerryThe State Department released a Federal Register notice today proposing to amend definitions for “public domain,” “fundamental research,” “defense services,” and “technical data” under the International Traffic in Arms Regulations (“ITAR”). [F/N 1] Among other things, the notice explicitly confirms that the State Department imposes a prepublication approval requirement on public speech under the ITAR.

The State Department requirement operates as a prior restraint on free speech that applies to all would-be publishers of ITAR technical data. It applies to print and electronic news media outlets, military and related engineering journals and magazines, movie and television entertainment industries, public libraries, publishing houses, trade show venues, and conference organizers. It also applies to persons who post information to blogs, electronic bulletin boards, company websites, and other online public forums.

Notice of the prepublication approval requirement comes as a surprise to many trade compliance professionals who reasonably believed any such requirement was removed in 1984 when the State Department deleted a former footnote thought by some to impose a general prepublication approval requirement. [F/N 2]  Indeed, the Federal Register notice removing the former footnote even cited First Amendment concerns. [F/N 3]

The controversial nature of public speech under the ITAR is nothing new.  Since 1978, the Justice Department repeatedly warned the State Department, the White House, and even Congress, that subjecting public speech to ITAR control raises serious constitutional concerns under the First Amendment. [F/N 4]  Federal courts directly addressing the issue agreed and have had little difficulty holding that the ITAR is unconstitutional as applied to public speech.

In Bernstein v. U.S. Dep’t of State, 945 F. Supp. 1279 (N.D. Cal. 1996), a federal district court held the State Department’s application of the ITAR to public speech involving cryptographic computer code was unconstitutional under the First Amendment. When the government shifted control over the computer code at issue from the State Department to the Commerce Department, the plaintiff challenged relevant Export Administration Regulations (“EAR”) controls and the federal court struck down control of public speech under the EAR as well. See Bernstein v. U.S. Dep’t of State, 974 F. Supp. 1288 (N.D. Cal. 1997). This decision was later upheld by the Ninth Circuit Court of Appeals. See Bernstein v. United States Dep’t of Justice,
 176 F.3d 1132 (9th Cir. 1999).

There is only one publicly known case of the State Department seeking to enforce the prepublication approval requirement following the Bernstein line of cases. This recent case, which involves an online publisher named Defense Distributed, has resulted in a lawsuit against the State Department and its employees for civil rights violations. [F/N 5]

The State Department’s imposition of the prepublication approval requirement is also contrary to the results of a study performed by an Federal Advisory Committee Act industry working group, which found that imposing a prepublication approval requirement through export controls would serve little purpose, be ineffective, and adversely impact research and development in the United States. [F/N 6]  The working group also observed that technology of likely concern to national security is normally restricted by the business community as proprietary information and/or classified by the government; that there are already many laws protecting technical information of concern from theft or other unauthorized use; and that the impact of publications on national security is minor compared to the burdens imposed on government and industry by a prepublication approval requirement.

The State Department will accept public comments to the proposed rule until August 3, 2015. However, considering the Department’s refusal to heed the Justice Department’s warnings, it is unlikely to change its decision to impose the prepublication approval requirement. Still, absent a court order enjoining the State Department from imposing the requirement or Congressional intervention, the public comment process may offer the last line of defense against State Department censorship of the Internet and other public forums.

*   *    *

[1] See 80 Fed. Reg. 31525, 31528 (June 3, 2015) (“Paragraph (b) of the revised definition explicitly sets forth the Department’s requirement of authorization to release information into the ‘‘public domain.’’ Prior to making available ‘‘technical data’’ or software subject to the ITAR, the U.S. government must approve the release through one of the following: (1) The Department; (2) the Department of Defense’s Office of Security Review; (3) a relevant U.S. government contracting authority with authority to allow the ‘‘technical data’’ or software to be made available to the public, if one exists; or (4) another U.S. government official with authority to allow the ‘‘technical data’’ or software to be made available to the public.”).

[2] See former Footnote 3 to Section 125.11 (1980). Copy available from author at matthew@goldsteinpllc.com

[3] See 49 Fed. Reg. 47,682, 47,683 (December 6, 1984) (“Concerns were expressed, for example, on licensing requirements as they relate to the First Amendment to the Constitution. The revision seeks to reflect these concerns . . .”).

[4] See 1997 Report on the Availability of Bombmaking Information,” U.S. Department of Justice Report to Congress, http://cryptome.org/abi.htm; “Revised Proposed International Traffic in Arms Regulations (ITAR),” U.S. Department of Justice Opinion Memorandum, July 5, 1984. https://app.box.com/s/utb41cwfhorh55463ufw; “Constitutionality of Proposed Revisions of the Export Administration Regulations,” U.S. Department of Justice Opinion Memorandum, July 28, 1981. http://www.justice.gov/olc/opiniondocs/op-olc-v005-p0230.pdf; “Constitutionality of the Proposed Revisions of the International Traffic in Arms Regulations,” U.S. Department of Justice Opinion Memorandum, July 1, 1981. https://app.box.com/s/x1urxgds1km6tw34qh5v; “Constitutionality Under the First Amendment of ITAR Restrictions on Public Cryptography,” U.S. Department of Justice Opinion Memorandum, May 11, 1978. https://app.box.com/s/r0xidb6z9m6x4uze5uqi

[5] See Defense Distributed v. U.S. Department of State et al., Case No. 1:15-cv-00372 (W.D. Texas, May 6, 2015), copies of pleadings available at www.goldsteinpllc.com; the author is co-counsel for Plaintiff in this action.

[6] See “Feasibility of Controls on Publication of PGUTI,” Department of Commerce Materials Technical Advisory Committee, September 5, 2014. Copy available at http://goldsteinpllc.com/2014/12/07/mtac-makes-recommendations-on-feasibility-of-controls-on-privately-generated-unclassified-technical-information/


*The above is not intended as an exhaustive list of restrictions that may apply to a particular transaction nor advice for a specific transaction because the specifics of an individual case may implicate application of other U.S. laws as well as foreign laws that carry added or different requirements.  In addition, U.S. export control and sanctions laws are frequently subject to change.  Such changes can affect the continued validity of the information above, which is based on U.S. law existing as of June 3, 2015. For these reasons, assistance from a qualified attorney competent to advise on such matters is highly recommended. Matthew A. Goldstein is an International Trade Attorney in Washington D.C. licensed to practice in the District of Columbia.  He can be reached at (202) 550-0040 and Matthew@GoldsteinPLLC.com

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