Export Control Reform

More Senators Join Fight Against ITAR Prior Restraint

The fight against the State Department’s imposition of a prior restraint on free speech under the International Traffic in Arms Regulations (“ITAR”) ramps up on the Hill – even as Congress begins its summer recess.

Yesterday, another group of senators sent a letter to the State Department demanding the agency to halt efforts to impose a prior restraint under its Proposed “Harmonization” Rule. [F/N 1]  As explained in previous DTL Blog posts, the State Department promulgated the Proposed Rule to explicitly require U.S. Government approval of public speech concerning technical data controlled by the ITAR. [F/N 2]

The letter is signed by a group of 28 Senators, to include Steve Daines (R-MT), Orrin Hatch (R-UT), Marco Rubio (R-FL), and Rand Paul (R-KY).  Among other things, it notes:

“The lines drawn by the proposal are also so vague, and the penalties for non-compliance so high, that the proposed rule would likely chill even unregulated speech.”

The letter joins the letter sent to the State Department on July 16, 2015 by Senators Ron Johnson (R-Wis.) and Charles Grassley (R-IA) requesting details on the prior restraint. [F/N 3]  Among other things, these 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.

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[1]  http://www.daines.senate.gov/news/press-releases/daines-leads-27-senators-in-urging-state-department-to-halt-misguided-itar-changes

[2] 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.”).

[3] 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

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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 4, 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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