[Discuss] ITAR, public domain, and open source

[Justin Cook]

Hi All,

Matt, thanks for the great summary and this will help explain the couple of
points that I want to cover.  One clarification that I want to make is what
Matt mentioned in his first email:

"Ardupilot got around open sourcing their stuff by open sourcing from
OUTSIDE of the US.  They have contributors in the US, but the projects ran
from outside the US specifically to avoid ITAR issues."

First thing is you cannot get around ITAR by publishing outside the United
States if you are using U.S. developed technical data and/or using defense
articles.  These contributors in the U.S. would have first needed to make
the determination that the data they provided was not controlled by U.S.
export law, otherwise they would have broken federal law.  Key example:  If
you have classified data you do not have the ability to go outside the U.S.
to discuss it because you are no longer in the U.S. This is the same for
export control laws.

This leads into another point about public domain and open source that Matt
provided that I think is important to clarify:

"The public domain exclusion includes language like "generally accessible"
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."

ITAR controls mainly three areas: Technical Data (blueprints, formulas, the
'how to develop" information), Defense services (training, maintenance
support), and defense articles (physical products). With that, ITAR
controls military information, but it also controls information that the US
deems as needing this additional protection.  A great example is with
commercial satellite technology.  Many international countries have the
same (or better) commercial satellite technology, but U.S. technology that
is commercial satellite technology is still ITAR controlled.  Also the US
government determines what is ITAR and company's secrets (aka intellectual
property) does not have any ITAR protection.  Now, there is additional
protection for IP, but that is not export control. Final point about open
source and public domain is that DoS will always say generally accessible,
but there are always caveats.  For example, if someone illegally puts ITAR
information on the web, it is still ITAR controlled and not open for the
masses.  I'll use the classified example again and just because a piece of
classified information was printed in the newspaper does not make it
"unclassified", it still maintains the classification.

The final thing I wanted to clarify was the use of Commodity Jurisdiction
(CJ) requests.  These are primarily used to transfer a product or data from
the ITAR to the EAR and are very specific.  In a CJ request you have to
actually put in the Export Classification Control Number (ECCN) under the
EAR that you believe the defense article you want to transfer is controlled
by.  What I am saying is that you can do this for a specific piece of
equipment, but I don't think it would work for overall space technical data
via open source.  You can always try, but from my experience DoS is also
concerned about CYA and will not give such as broad decision.

I think those were the major points, but let me know if I can clarify
anything.  Thanks!

Justin












On Wed, Oct 9, 2013 at 9:46 AM, Matt Maier <blueback09 at gmail.com> wrote:

> 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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