Export Control Reform

Saving Free Speech from the ITAR

Tomorrow is the final day for public comments to the State Department’s Proposed “Harmonization” Rule, which seeks to explicitly require U.S. Government approval of public speech concerning technical data controlled by the International Traffic in Arms Regulations (“ITAR”). [F/N 1]  The Proposed Rule is perhaps the most troubling of those promulgated under the President’s Export Control Reform (“ECR”) Initiative because it imposes a prior restraint on speech protected by the First Amendment to the U.S. Constitution.

At last report, there were over 12,000 public comments opposing the prior restraint.  While approximately 7,000 of these were posted at Regulation.gov for some time, thousands of other comments are being withheld pending government review.  In the meantime, the State Department recently claimed that all but 8 of the comments are from gun control opponents.  Despite this claim, opposition to the Proposed Rule comes from universities, public interest groups, concerned citizens, and other members of the public with valid First Amendment concerns. [F/N 2]

The prior restraint’s impact will be far-reaching, beyond just technical data on guns controlled at Category I of the ITAR U.S. Munitions List (“USML”) because there are twenty other USML categories with technical data subject to ITAR control.  These include USML categories VIII and XI, which, among other things, control technical data on developmental aeronautics and electronics that have received any Department of Defense funding, regardless of whether the information has any actual military application. This control applies regardless of what percentage of the information at issue resulted from the Department of Defense funded research.

Under ITAR USML Category XXI, the prior restraint can also apply to discussions on any technical data – anything – that the State Department decides to place on its secret list of “Miscellaneous Items.”

Moreover, as explained in a video report by the Tenth Amendment Center, allowing the State Department to treat public speech on the Internet as an “export” subject to government prepublication approval requirements will create a dangerous precedent that is applicable to all speech:

“Think of this example. Let’s say the government issues an almost total ban on trade with a particular country like they did for years with Cuba. Then, even if you don’t intend to share with that country your recipe for a cake or blueprint to build a desk or instructions on how to customize a computer, if this new embargo prohibited foreign exports to that country, the government could, based on this current precedent, claim the power to ban you from posting any of these mundane things on the Internet, without their permission of course.” [F/N 3]

Congress has yet to address the failure of ECR and its implications to U.S. national security.  Still, some members of Congress are now questioning the State Department on its intent to create a system of censorship under the ITAR.

On July 16, 2015, Senators Ron Johnson (R-Wis.), Chairman of the Homeland Security and Governmental Affairs Committee, and Charles Grassley (R-IA), Chairman of the Senate Judiciary Committee, sent a letter to the State Department requesting details on the prior restraint. [F/N 4]  Among other things, the senators requested that the State Department explain the agency’s purported legal authority for the prior restraint and demanded copies of all communications between the White House, State Department, and other government agencies relating to the prior restraint.

Nevertheless, despite the senators’ inquiry, despite multiple Department of Justice warnings that imposing a prior restraint under the ITAR is unconstitutional, despite Congress’ instruction to the State Department in 1980 to heed the Department of Justice warnings [F/N 5], and despite unprecedented public opposition, a State Department official recently confirmed the agency’s continued intent to impose the prior restraint.  

Although the comment deadline will soon pass, interested members of the public can still take action to stop the Proposed Rule by contacting their Congressional Representatives and requesting additional inquiries of the State Department by members of Congress.  In addition to these direct Congressional member inquiries, members of the Homeland Security and Governmental Affairs Committee (chaired by Charles Grassley (R-IA), Senate Committee on Foreign Relations (chaired by Bob Corker (R-TN), and the House Committee on Foreign Affairs (chaired by Ed Royce R-CA) can initiate formal Congressional proceedings to obtain information and explanations from the State Department about the Proposed Rule. [F/N 6]  Considering the State Department’s lack of authority to impose the prior restraint and the threat to basic freedoms at issue, Congressional inquiries can result in direct action by Congress to block the Proposed Rule.

*   *    *

[1]  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 e.g., “TPPF Submitted Public Comment on the ITAR,” Texas Public Policy Foundation, available at www.texaspolicy.com/content/detail/tppf-submitted-comment-on-itar

[3] Tenth Amendment Center, “REPORT: State Department Uses Gun Control as an Excuse to Censor Speech Online,” available at https://www.youtube.com/watch?v=zWd463UuU_w; see also public comments posted at Regulations.gov: DOS-2015-0023-0001 (“How dare you even consider regulating free speech! The State Department’s proposed changes in ITAR are nothing more than a slick attempt to circumvent free speech and is disgusting beyond belief. James Madison and the Founding Fathers are surely spinning in their graves.”), DOS-2015-0023-5775 (“We don’t need our free speech rights regulated by the Government period.”), DOS-2015-0023-0001 (“NO to this change, it restricts my 1st amendment rights…..NO, NO, NO !!!!!”).

[4] See July 16, 2015 Letter to John Kerry, Secretary of State, available at http://www.grassley.senate.gov/sites/default/files/judiciary/upload/2015-07-16%20CEG%20%2B%20RHJ%20to%20State%20Deparment%20%28ITAR%29.pdf

[5] See U.S. House, Thirty-Fourth Report of the Committee on Government Operations, December 22, 1980 (H. Rpt. 96-1540, 119) (Washington, DC: Government Printing Office, 1980), at p. 119. (““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.”).

[6] Among the other things, the Subcommittee on Regulatory Affairs and Federal Management of the Homeland Security and Governmental Affairs Committee has oversight over the management, efficiency, effectiveness, and economy of all federal government agencies, departments, and programs; the Subcommittee on State Department and  USAID Management, International Operations, and Bilateral International Development of the Senate Foreign Relations Committee operates oversight over all matters involving the State Department, to include the general oversight responsibility for management and operations of the agency; and the House Committee on Foreign Affairs has oversight over the State Department budget and is responsible for ensuring that its operations promote U.S. national interests in a cost-effective and accountable manner.

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*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 August 2, 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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