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

Wed Oct 9 18:02:03 UTC 2013

Not a stupid question.  Some of us are just stuck living with it and forget
not everyone knows what it is. It is an acronym for International Traffic
in Arms Regulations (
http://en.wikipedia.org/wiki/International_Traffic_in_Arms_Regulations).
 It is basically a set of regulations governing the legal export of
military and defense related hardware/technology.  For more info, also take
a look at Mach 30's Export Control Task Force page (ITAR is one example of
export controls) - http://mach30.org/ectf/

 -J

On Wed, Oct 9, 2013 at 1:52 PM, Tom Igoe <tom.igoe at gmail.com> wrote:

> I'll ask the stupid question:
>
> What is ITAR?
>
> t.
>
> On Oct 9, 2013, at 11:53 AM, Bryan Bishop <kanzure at gmail.com> wrote:
>
>
> 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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-- 
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Mach 30: Foundation for Space Development
http://mach30.org
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