Practical Trade & Customs Strategies © Thomson Reuters/WorldTrade Executive 2013
export Controls
Department of State Conrms Prior Approval
Requirement for Electronic Exports to Public Domain inCase of 3D-Printable Gun
By Matthew A. Goldstein (Matthew A. Goldstein PLLC)
Th Dfns Distribtd posting has alsorcivd significant govrnmnt attntionwith Congrssional calls to rnw of thundtctabl Firarms Act.
Electronic Exports, continued on page 4
Introduction
The International Trafc in Arms Regula
-tions (“ITAR”), administered by the Departmentof State Directorate of Defense Trade Controls(“DDTC”), requires prior DDTC authorizationfor exports and temporary imports of “defensearticles” and “technical data” described on theITAR U.S. Munitions List (“USML”) unless anexemption or exclusion from the ITAR applies.
Information otherwise falling under the denition
of technical data is excluded from ITAR control if it is already published and available to the publicthrough one of several means listed at 22 C.F.R.§
120.11. This is known as the ITAR “public do-main” exclusion.Posting technical data on the Internet is themost common and effective means of makinginformation available to the public. However,DDTC does not recognize information on theInternet as per se within the public domain ex-clusion. Instead, DDTC focuses on whether suchinformation was validly placed on the Internet,emphasizing that prior approval from the U.S.Government is required prior to transmittingtechnical data into the public domain regardlessof whether the information is privately generatedtechnical data, technical data subject to govern-ment contract restrictions on dissemination, or na-
tional security classied information. This means
that not only may the original transmission intothe Internet constitute a violation of the ITAR, butfurther transmissions of otherwise ITAR technicaldata found on the Internet by third parties mayconstitute additional violations.Informal DDTC advisements have long
conrmed that prior approval by the U.S. Gov
-ernment agency with cognizance is required before privately generated technical data can betransmitted into the public domain without aDDTC license. However, the absence of a writ-ten agency position on the requirement, and thehistory behind removal of the previous clearlystated ITAR requirement for preapproval beforetransmission has led some practitioners to ques-tion the existence of the requirement. This issuenow seems resolved by a letter sent in May fromDDTC to Defense Distributed (defdist.org), theposter of Computer Assisted Drafting (“CAD”)
les for 3D printer manufacturing of a rearmand rearm parts and components.
3D Printing Technology
Innovations in 3D printing technology, alsoknown as “additive manufacturing,” use CAD
les to layer various raw materials (most com
-monly thermoplastic) into usable shapes. To date,3D printers have been used in a variety of indus-tries to make prototypes and items of limited dis-tribution, to include small household goods andmachine parts. Applications of this technology aregrowing fast and, as with many other innovativetechnologies, harmful applications of 3D printingtechnology have emerged to challenge traditionalforms of government regulation.In May, Defense Distributed, a Texas corpora-
tion, posted CAD les for a 3D printable gun on
the Internet. The gun, nicknamed the “Liberator,”is easily pieced together from sixteen 3D printedplastic parts and a metal nail. It is untraceable andcan reportedly slip by metal detectors unnoticed(likely when not accompanied by the nail).Since its posting on the Internet, the Liberatorhas become the focus of national media attention,with coverage on Forbes, CNN, NBC News, theWall Street Journal, and even an episode of TheColbert Report. YouTube videos showing the gunin action have logged over a million views.The Defense Distributed posting has alsorecieved significant government attention. Itprompted Congressional calls to renew of the Un-detectable Firearms Act and, on May 8, 2013, theDepartment of State stepped in when the DDTCCompliance and Enforcement Division sent De-
© Thomson Reuters/WorldTrade Executive June 15, 2013
export Controls
Electronic Exports from page 3
fense Distributed a letter instructing the company
to remove the Liberator and other CAD les from
the Internet.
1
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.
2
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.
5
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.
6
Specically,
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.
7
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.
8
Congressional tes-timony on the issue followed, urging revisions to
the ITAR to address the constitutional inrmities
noted by the Department of Justice letter.
9
During
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
articles.”
3
This includes “information in the formof blueprints, drawings, photographs, plans, in-structions or documentation.”
4
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-
Practical Trade & Customs Strategies © Thomson Reuters/WorldTrade Executive 2013
export Controls
Electronic Exports, continued on page 6
nitions Control, the predecessor to DDTC, issueda newsletter focused on exports of cryptographicinformation in which it made the following crypticstatement:The public is reminded that professional andacademic presentations and informal discussions,as well as demonstrations of equipment, consti-tuting disclosure of cryptologic technical data toforeign nationals, are prohibited without the prior
approval of this ofce. Approval is not required
for publication of data within the United Statesas described in Section 125.11(a)(1). Footnote 3 tosection 125.11 does not establish a prepublicationreview requirement.
10
Thereafter, the Department of State amended
the ITAR to clarify the denition of public domain,
add additional types of public domain, and to turnpublic domain from an exemption at Part 125 toexclusion at Part 120.
11
In doing so, the agencynoted, “a provision has been added to make itclear that the regulation for the export of technicaldata does not purport to interfere with the FirstAmendment rights of individuals.”
12
Today, the ITAR denition of technical data
expressly excludes from its scope, and hence fromcontrol under the ITAR, published information“which is generally accessible or available to thepublic”:(1) Through sales at newsstands and book-stores;(2) Through subscriptions which are avail-able without restriction to any individual whodesires to obtain or purchase the published in-formation;(3) Through second class mailing privilegesgranted by the U.S. Government;(4) At libraries open to the public or fromwhich the public can obtain documents;(5) Through patents available at any patent
ofce;
(6) Through unlimited distribution at a confer-ence, meeting, seminar, trade show or exhibition,generally accessible to the public, in the UnitedStates;(7) Through public release (
i.e.,
unlimiteddistribution) in any form (
e.g.,
not necessarily inpublished form) after approval by the cognizantU.S. Government department or agency (see also§ 125.4(b)(13) of this subchapter);(8) Through fundamental research in scienceand engineering at accredited institutions of higher learning in the U.S. where the resultinginformation is ordinarily published and shared
broadly in the scientic community.
13
Neither the ITAR nor any ofcial DDTC guid
-ance states whether Section 120.11 is an exhaustivelist of what is considered in the public domain.This raises the question of whether information
available on the Internet is within the ITAR de
-nition of public domain. Yet, although, as withinformation in books, information available onthe Internet is accessible at most public librar-ies, DDTC has not listed the Internet among therecognized types of public domain informationat 120.11. Instead, and to the contrary, DDTCtakes the position in informal industry guidancethat information on the Internet remains ITARcontrolled if it was transmitted into the publicdomain without requisite authorization.The DDTC position is supported by Section120.11(7)’s reference to Subsection 125.4(b)(13),which provides an exemption to license re-quirements and the only expressly authorizedmeans of transmission into the public domainfor “[t]echnical data approved for public release(i.e., unlimited distribution) by the cognizant U.S.
Government department or agency or Ofce of
Freedom of Information and Security Review.”
14
Accordingly, a plain reading of the ITAR is thatall types of public domain information enumer-ated at 120.11 except for information described at120.11(7) by way of Subsection 125.4(b)(13) (i.e.,approved by cognizant U.S. Government agency),must already be published and generally acces-sible to the public to qualify under the publicdomain exclusion. Conservative compliance prac-titioners follow this interpretation, recognizingthe continued requirement for cognizant agencyapproval of transmissions of ITAR technical datainto the public domain.Despite the above, some practitioners cite thesupplementary information to the 1980 and 1984amendments to mean that the State Department nolonger requires preapproval before transmissionsinto the public domain. These practitioners viewthe requirement for cognizant government agencyapproval provided at Subsection 125.4(b)(13) asapplicable only to releases of technical data fromgovernment contract restrictions on dissemination
and declassication where necessary and not ap
-plicable to privately generated technical data.
Conclusion
As the rst publicly available written state
-ment from DDTC on the continued requirementfor advanced U.S. Government approval beforetransmission of ITAR technical data into the publicdomain, the DDTC letter to Defense Distributed