This post contains copies of publicly available Department of Justice memoranda warning the State Department, White House, and Congress that imposition of ITAR control over public speech violates the First Amendment. Related Congressional documents are also attached.
Each document is referenced in the below chronology of events, which led to removal of a prior ITAR provision thought to impose a prepublication approval requirement in 1984.
The documents and chronology are provided to assist organizations and individuals interested in submitting comments to the State Departments’ proposed rule under 80 Fed. Reg. 31525 (June 3, 2015), wherein the agency seeks to explicitly set forth a prepublication approval requirement on public speech involving ITAR-controlled technical data.
Public comments to the proposed rule are due by August 3, 2015 and can be submitted on the Internet at www.regulations.gov [search for the notice by using this rule’s RIN (1400–AD70)].
CHRONOLOGY OF EVENTS
From 1969 to 1984, Footnote 3 to former ITAR Section 125.11 stated, “[t]he burden for obtaining appropriate U.S. Government approval for the publication of technical data falling within the definition in § 125.01, including such data as may be developed under other than U.S. Government contract, is on the person or company seeking publication.” This provision was controversial and the subject of court proceedings, Department of Justice memoranda, and Congressional testimony.
On May 11, 1978, the Department of Justice issued a memorandum to the White House, titled “Constitutionality Under the First Amendment of ITAR Restrictions on Public Cryptography.” Among other things, page 4 of the memo stated:
“It is by no means clear from the language or legislative history of either statute that Congress intended that the President regulate noncommercial dissemination of information, or considered the problems such regulation would engender.” [F/N 1]
The 1978 Department of Justice memorandum further warned that ITAR restrictions on public speech were unconstitutional under the First Amendment because standards for license determinations were imprecise and failed to guard against arbitrary and inconsistent administrative action; and because the ITAR did not provide a means for prompt judicial review of adverse license decisions. It concluded:
“For these reasons it is our conclusion that the present ITAR licensing scheme does not meet constitutional standards.” [F/N 2]
In 1980, following testimony before Congress on the issue of ITAR control of public speech on cryptography, [F/N 3] the House Subcommittee of the Committee on Government Operations directed the State Department to address the constitutional objections identified in the 1978 Department of Justice memorandum:
“In light of the memorandum opinion of the Office of Legal Counsel of the Department of Justice in May 1978 on the constitutionality under the First Amendment of ITAR restrictions on public cryptography, review and rewrite the ITAR to satisfy constitutional objections.” [F/N 4]
During the time of the Congressional hearing, the Department of State’s Office of Munitions Control, the predecessor to DDTC, issued Munitions Control Newsletter No. 80, advising industry that the ITAR did not impose a prepublication approval requirement:
“Approval is not required for publication of data within the United States as described in Section 125.11(a)(1). Footnote 3 to section 125.11 does not establish a prepublication review requirement.” [F/N 5]
Thereafter, on December 19, 1980, the State Department published proposed revisions to former section 125.11. The preamble to the proposed rule stated:
“The revision also incorporates into the text of the ITAR those informal ‘MC Notes’ of recent years which were designed to provide regulatory guidance on application of the ITAR. For example, a provision has been added to make it clear that the regulation for the export of technical data does not purport to interfere with the First Amendment rights of individuals.” 45 Fed. Reg. 83,970 (December 19, 1980).
On July 1, 1981 the Department of Justice issued another memorandum, this time to the State Department Office of Munitions Control, regarding concerns with proposed revision to ITAR:
“On the basis of our analysis below, we conclude that the revised version of the ITAR is a significant improvement over the prior version, but that even as revised, it can have a number of unconstitutional applications.” [F/N 6]
On July 5, 1984, the Department of Justice issued another memorandum reiterating its concerns with State Department proposed revisions to ITAR:
“For reasons set forth in detail below, we believe that the current draft is an improvement over the prior draft, but that the application of the ITAR to a significant class of conduct continues to raise serious constitutional questions, which should be resolved prior to promulgation of the revised ITAR.” [F/N 7]
Thereafter, on December 6, 1984, the State Department issued a final rule amending the ITAR to clarify the definition of public domain, add additional types of public domain, and move public domain to Part 120. In doing so, the agency eliminated Footnote 3 to former 125.11. The preamble to the final rule stated:
“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, and certain new exemptions are provided.” 49 Fed. Reg. 47682, 47,683 (December 6, 1984).
On July 22, 1993, DDTC established public domain as an express exclusion from the definition of technical data under section 120.10 by an amendment that expanded and clarified the definition of public domain. See 58 Fed. Reg. 39,280 (July 22, 1993). This amendment further added four additional types of public domain, bringing the total to the eight we have today at ITAR Section 120.11(a):
120.11 Public domain.
(a) Public domain means information which is published and which is generally accessible or available to the public:
(1) Through sales at newsstands and bookstores;
(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
(3) Through second class mailing privileges granted by the U.S. Government;
(4) At libraries open to the public or from which the public can obtain documents;
(5) Through patents available at any patent office;
(6) Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency (see also §125.4(b)(13) of this subchapter);
(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community…
In a 1997 report to Congress, the Department of Justice again confirmed that a prior restraint on the publication of ITAR-controlled technical data would violate the Constitution:
“…anyone interested in manufacturing a bomb, dangerous weapon or weapon of mass destruction can easily obtain detailed instructions for manufacturing and using such a device, both from legitimate publications and from so-called “underground” publications. And, presumably, most if not all of the writers and publishers of such publications do not obtain the information unlawfully, or from classified sources. The First Amendment imposes significant constraints on the ability of the government to restrict publication of such information.” [F/N 8]
 Letter from John M. Harmon, Assistant Attorney General at the Office of Legal Counsel for the Department of Justice, to Dr Frank Press, Director of the Science and Technology (May 11, 1978) at p. 4.
 Id. at p. 11.
 U.S. House, Subcommittee of the Committee on Government Operations, The Government’s Classification of Private Ideas, Hearing, February 28, 1980 (Serial No. 83-362 O) (Washington, DC: Government Printing Office, 1981).
*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 July 9, 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