© Thomson Reuters/WorldTrade Executive June 15, 2013
Electronic Exports from page 3
fense Distributed a letter instructing the company
to remove the Liberator and other CAD les from
In doing so, DDTC noted:DTCC/END is conducting a review of tech-nical data made publicly available by DefenseDistributed through its 3D printing website, DE-FCAD.org, the majority of which appear to be re-lated to items in Category I of the USML. DefenseDistributed may have released ITAR-controlledtechnical data without the required prior autho-rization from the Directorate of Defense TradeControls (DDTC), a violation of the ITAR.
Defense Distributed complied with the De-partment of State request and removed the CAD
les from its website. However, the Liberatorles were reportedly downloaded over 100,000
clusion” to the regulations as it exists today.
Thedifference between an ITAR exemption and ITAR
exclusion is signicant because exemptions mean
that the ITAR applies to the article or data, butthat no license is required so long as the transac-tion meets certain requirements and the exporter
takes specic steps in conjunction with the export;
whereas articles and data subject to an exclusionare simply not subject the ITAR at all.As an exemption, the previous definitionof ITAR public domain expressly conditionedlicense-free treatment of information found inthe public domain on U.S. Government preap-proval of transmission of the technical data into
the public domain in the rst place.
the ITAR formerly contained a clause at Footnote3 to Section 125.11 providing that “[t]he burden forobtaining appropriate U.S. Government approvalfor the publication of technical data falling within
the denition [of technical data], including such
data as may be developed under other than U.S.Government contract, is on the person or companyseeking publication.”The express ITAR requirement for U.S.Government prior approval constituted a priorrestraint on speech. When involving non-com-mercial speech, prior restraints are subject to astrong presumption of unconstitutionality underthe First Amendment to the U.S. Constitution.Commercial speech and non-expressive speechare subject to lesser protection. In either case, theFirst Amendment protections are not absoluteand the power of the Government to restrict in-dividual rights is strong when it comes to mattersof national security and foreign policy. In fact,courts have rejected criminal defenses based onthe First Amendment in cases involving exportsof technical data without a license, even when thedata was in the public domain.
Nevertheless, in response to issues raisedin court proceedings, in 1978 the Departmentof Justice issued a memorandum to The WhiteHouse on the constitutionality of export restric-
tions on unclassied cryptographic information,
stating that the restrictions were unconstitutionalunder the First Amendment because standardsfor license determinations were imprecise andfailed to guard against arbitrary and inconsistentadministrative action; and because the ITAR didnot provide a means for prompt judicial reviewof adverse license decisions.
Congressional tes-timony on the issue followed, urging revisions to
the ITAR to address the constitutional inrmities
noted by the Department of Justice letter.
this time, the Department of State’s Ofce of Mu
Th prsnt dfinition of ITAR tchnicaldata inclds information “rqird for thdsign, dvlopmnt, prodction, manfactr,assmbly, opration, rpair, tsting, maintnanc
or modication of defense articles.”
times from U.S. and non-U.S. locations beforetheir removal and have now been re-uploaded tothe Internet by other users.
ITAR Technical Data and Public Domain
The Department of State’s authority to controlthe export of munitions would be of little practicalvalue if applying only to the export of a defense
article, but not the plans and specications to build said article. This is why the present deni
-tion of ITAR technical data includes information“required for the design, development, produc-tion, manufacture, assembly, operation, repair,
testing, maintenance or modication of defense
This includes “information in the formof blueprints, drawings, photographs, plans, in-structions or documentation.”
The denition alsoincludes unclassied privately generated technical
data not developed under a government contract(“private sector technical data”), such as the Lib-
erator CAD les but does not include informationin the “public domain” as such is dened in 22
C.F.R. § 120.11.
The ITAR denition of public domain has not
always been at Section 120.11 and has undergone
signicant change throughout the years. From1969 to 1984, it was dened as an “exemption” to
ITAR licensing requirements, rather than an “ex-