[Discuss] [mil-oss] Re: Fwd: ITAR, public domain, and open source

[Matt Maier]

On Thu, Oct 10, 2013 at 8:38 AM, Justin Cook <azjcook at gmail.com> wrote:

> I don't know if there is a mechanism to get  broad public release license.
> DoS would say that is why they provide the ability for an export license,
> or if you need to work with international partners, a technical assistance
> agreement (TAA)
> Justin
>
>
 Justin,

Thanks so much for bringing your expertise to the discussion. It is
incredibly valuable to have someone quickly point out what is accurate and
what isn't.

Has the DoS ever clarified the process by which something that is not
"basic research" or "released by the cognizant department" is lawfully
entered into the public domain?

The Defense Trade Advisory Group <http://www.pmddtc.state.gov/DTAG/> has
been discussing the need to clarify the definition of "public domain"
(along with the interrelated definitions of defense services and technical
data and whatnot) for at least the last couple years. Here's the most
up-to-date information I found. They do things in November, so there might
be a meeting coming up soon.
http://pmddtc.state.gov/DTAG/documents/plenary_Nov2012_PrioritiesWhitePaper.pdf

There's this presentation where they specifically address the problems with
the "public domain" definition but I can't find any solid follow-up actions.
http://www.pmddtc.state.gov/DTAG/documents/DTAG_9Nov11_Plenary_PublicDomainPresentation.ppt

Here's an older example of someone again pointing out that merely making
something available doesn't make it public domain. The closest he gets to
explaining what IS public domain is when he references the eight specific
publishing options the ITAR defines.
http://www.gibsondunn.com/publications/pages/ITARUpdate-TechnicalDataOnInternet.aspx

The specific avenues defined in the ITAR are:
http://www.fas.org/spp/starwars/offdocs/itar/p120.htm#P120.11
1) sales at newsstands and bookstores
2) unrestricted subscriptions
3) second class mailing privileges
4) public libraries
5) patents
6) unlimited distribution at a conference, meeting, seminar, trade show, or
exhibition
7) public release after approval of the cognizant department/agency
8) fundamental research
So, I can see how the internet kind of threw a monkey wrench into that
definition that somebody obviously worked pretty hard on. It strongly
implies that information has to be physically written down before it can be
public domain, which aligns with the response AMSAT got from DDTC. I assume
they figured that the difficulty and expense of publishing and distributing
physical references would help to ensure the information was lawfully
released. But I still can't find any explanation of what distinguishes
lawful public domain from unlawful.

It seems like the internet specifically, and the open source approach to
technology development generally, are simply not addressed. Basically, the
law only anticipates ITAR controlled information being produced by
educational institutions and/or corporations. If it's the former, then it
can become public domain as research. If it's the latter, then it can
become public domain with a request to the relevant department. But if some
random people get together and produce ITAR controlled information in the
course of their hobby, there is no defined way for it to become public
domain. Would you say that's an accurate assessment?

Thanks for your help!
-Matt
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