[Discuss] Fwd: ITAR, public domain, and open source

Wed Oct 9 15:53:32 UTC 2013

From: Matt Maier <blueback09 at gmail.com>
Date: Wed, Oct 9, 2013 at 10:46 AM
Subject: [Discuss] ITAR, public domain, and open source
To: oss-export-control <oss-export-control at googlegroups.com>, The Open
Source Hardware Association Discussion List <discuss at lists.oshwa.org>

Hey guys,

TL;DR
This message got pretty long, so this is sort of an executie summary
1) The spirit of the "public domain" exclusion to ITAR definitely seems to
include open source, even if the letter doesn't.
2) We can submit a commodity juristiction request and get a firm answer on
why open source work has to comply with ITAR.
3) AMSAT appears to have already gone down this road, so we should get in
contact with them and find out what they know.
TL;DR

I was going through the regulations on ITAR and it inspired a thought that
suggests a possible course of action. The relevant stuff is included at the
end of this message; I'll just paraphrase here.

It seems like there are extensive export controls on two things 1) the
actual physical thing and 2) the relevant technical data. However, the
"technical data" section specifically excludes "public domain." I think
that I can see what Chris Anderson means when he says that ITAR doesn't
apply to his drone stuff and I think we can make a plausible argument for
investigating whether or not ITAR actually applies to open source space
information.

The first thing that is controlled is the actual physical thing itself.
It's easy to say the rules don't apply as long as you're not physically
sharing anything with a foreign person. We want to share raw information,
so that's not really a big deal, at least not for a while.

The second thing that is controlled is the technical data and/or services,
which is what we want to share. But it would seem that anything qualifiying
as public domain is not controlled.

The public domain exclusion includes language like "generally acessible"
and "available without restriction to any individual." It really does seem
like the information controlled by ITAR (aside from obvious military
information) is just the stuff that companies keep secret to make a profit.
Since we specifically want to share information as widely as possible maybe
open source can qualify as public domain by definition.

I found this letter from the AMSAT (2011) to the DDTC where they say that
DDTC said that for something to be public domain it has to be printed on
paper and AMSAT said WTF and asked DDTC to revise their guidance in light
of the WWW.
http://www.amsat.org/amsat-new/images/fck_images/AMSAT%20ITAR%20Comments%20Final.pdf

Here is DDTC saying that they think anyone providing services are subject
to ITAR only if they use "other than public domain" information.
http://www.pmddtc.state.gov/FR/2011/76FR20590.pdf
http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201110&RIN=1400-AC80

Here is AMSAT asking that they get a specific exemption from the Cat XV
revisions to ITAR
http://ww2.amsat.org/wordpress/wp-content/uploads/2013/07/AMSAT-DDTC-Comments-Submission.pdf
and
http://www.arrl.org/news/amsat-wants-amateur-satellites-off-us-munitions-list
and
a progress report
http://amsat-uk.org/2012/04/29/itar-and-amateur-radio-progress-report/

Mailing list
http://ww2.amsat.org/amsat/archive/amsat-bb/100day/msg104257.html

Jonathan Oxer says that ITAR makes ArduSat a weapon no matter what
http://www.theregister.co.uk/2013/08/09/arduino_powered_cubesats_arrive_at_iss_on_saturday/

The other thing is that anyone can submit a commodity juristiction request
to ask if something falls under ITAR. So we could lay out the case for open
source space and submit it to the DDTC and get a hard response on what
problem they have, if any, with open sourcing space information.

-Matt

What follows iare a bunch of quotes from the ITAR regulations:
**
*
http://www.pmddtc.state.gov/regulations_laws/documents/consolidated_itar/2013/ITAR_Part120.pdf
*
*

§ 120.1 General authorities and eligibility.
*

(a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778), as amended,
authorizes the President to control the export and import of defense
articles and defense services...**

§ 120.2 Designation of defense articles and defense services
The items so designated constitute the United States Munitions List and are
specified in part 121 of this subchapter*

§ 120.3 Policy on designating and determining defense articles and services.
*

An article or service may be designated or determined in the future to be a
defense article (see §120.6) or defense service (see §120.9) if it:

(a) Is specifically designed, developed, configured, adapted, or modified
for a military application, and

(i) Does not have predominant civil applications, and

(ii) Does not have performance equivalent (defined by form, fit and
function) to those of an article or service used for civil applications; or

(b) Is specifically designed, developed, configured, adapted, or modified
for a military application, and has significant military or intelligence
applicability such that control under this subchapter is necessary.
*

§ 120.6 Defense article.
**

Defense article
*means any item or technical data designated in §121.1 of this subchapter*

§ 120.9 Defense service.
*(a) *Defense service *means:

(1) The furnishing of assistance (including training) to foreign persons,
whether in the United States or abroad in the design, development,
engineering, manufacture, production, assembly, testing, repair,
maintenance, modification, operation, demilitarization, destruction,
processing or use of defense articles;

(2) The furnishing to foreign persons of any technical data controlled
under this subchapter (see §120.10), whether in the United States or abroad
*

§ 120.10 Technical data.
*

(a)
*Technical data *means, for purposes of this subchapter...(5) This
definition does not include information concerning general scientific,
mathematical or engineering principles commonly taught in schools, colleges
and universities or information in the public domain as defined in §120.11
*§ 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.
Fundamental research is defined to mean basic and applied research in
science and engineering where the resulting information is ordinarily
published and shared broadly within the scientific community, as
distinguished from research the results of which are restricted for
proprietary reasons or specific U.S. Government access and dissemination
controls. University research will not be considered fundamental research
if:

(i) The University or its researchers accept other restrictions on
publication of scientific and technical information resulting from the
project or activity, or

(ii) The research is funded by the U.S. Government and specific access and
dissemination controls protecting information resulting from the research
are applicable.

http://www.pmddtc.state.gov/regulations_laws/documents/consolidated_itar/2013/ITAR_Part121.pdf

* § 121.1 General. The United States Munitions List*

*Category IV—Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets,
Torpedoes, Bombs and Mines*

*(a) Rockets...*(b) Launch vehicles...(c) Apparatus, devices, and materials
for the handling, control, activation, monitoring, detection, protection,
discharge, or detonation of the articles in paragraphs (a) and (b)...*(d)
Missile and space launch vehicle powerplants...(h) All specifically
designed or modified components, parts, accessories, attachments, and
ssociated equipment for the articles in this category...

(i) Technical data (as defined in §120.10 of this subchapter) and defense
services (as defined in §120.9 of this subchapter)

*(b) Propellants...(h) Technical data (as defined in §120.10 of this
subchapter) and defense services (as defined in §120.9 of this subchapter)
directly related to the defense articles numerated in paragraphs (a)
through (g) of this category

*Category XV*
*—Spacecraft Systems and Associated Equipment*

*(a) Spacecraft, including communications satellites, remote sensing
satellites, scientific satellites, research satellites, navigation
satellites, experimental and multi-mission satellites. *Note to paragraph
(a): Commercial communications satellites, scientific satellites, research
satellites and experimental satellites are designated as SME only when the
equipment is intended for use by the armed forces of any foreign country... (b)
Ground control stations for telemetry, tracking and control of spacecraft
or satellites, or employing any of the cryptographic items controlled under
category XIII of this subchapter

(f) Technical data (as defined in §120.10 of this subchapter) and defense
services (as defined in §120.9 of this subchapter) directly related to the
articles enumerated in paragraphs (a) through (e) of this category

*§ 120.4 Commodity jurisdiction.*

(a) The commodity jurisdiction procedure is used with the U.S. Government
if doubt exists as to whether an article or service is covered by the U.S.
Munitions List...Upon electronic submission of a Commodity Jurisdiction
(CJ) Determination Form (Form DS–4076), the Directorate of Defense Trade
Controls shall provide a determination of whether a particular article or
service is covered by the U.S. Munitions List. (b) Registration with the
Directorate of Defense Trade Controls as defined in part 122 of this
subchapter is not required prior to submission of a commodity jurisdiction
request...(c) Requests shall identify the article or service, and include a
history of this product's design, development, and use...(d)(1) A
determination that an article or service does not have predominant civil
applications shall be made by the Department of State, in accordance with
this subchapter, on a case-by-case basis, taking into account:

(i) The number, variety and predominance of civil applications;

(ii) The nature, function and capability of the civil applications; and

(iii) The nature, function and capability of the military applications.

(2) A determination that an article does not have the performance
equivalent, defined by form, fit and function, to those used for civil
applications shall be made by the Department of State, in accordance with
this subchapter, on a case-by-case basis, taking into account:

(i) The nature, function, and capability of the article;

(ii) Whether the components used in the defense article are identical to
those components originally developed for civil use.

(3) A determination that an article has significant military or
intelligence applications such that it is necessary to control its export
as a defense article shall be made, in accordance with this subchapter, on
a case-by-case basis, taking into account:

(i) The nature, function, and capability of the article;

(ii) The nature of controls imposed by other nations on such items
(including Wassenaar Arrangement and other multilateral controls), and

(iii) That items described on the Wassenaar Arrangement List of Dual-Use
Goods and Technologies shall not be designated defense articles or defense
services unless the failure to control such items on the U.S. Munitions
List would jeopardize significant national security or foreign policy
interests.

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-- 
- Bryan
http://heybryan.org/
1 512 203 0507
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