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

Justin Cook azjcook at gmail.com
Thu Oct 10 20:11:35 UTC 2013

That is an accurate assessment, but will remain a problem in that DoS has
to have a boundary for what is considered public domain.  DoS is extremely
conservative and they will always provide an answer which they can, at
least partly, quantify.  To say that anything in the internet is public
domain will never happen because it goes back to someone putting
information on the internet that DoS wants to protect.  DoS will always
consider this protected until it is officially published in some manner.
It's not the best position for State, but I also don't know how they would
say otherwise because it would put them in a difficult position in
determining what is controlled and not controlled.


On Thu, Oct 10, 2013 at 9:32 AM, Matt Maier <blueback09 at gmail.com> wrote:

> 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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