Case law re ITAR and export control

17 Dec 2003

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I've been reading more about export controls, and found these cases
which may be of interest:

US v Elder, 579 F.2d 516 (9th Cir, 1978).
Prohibition on export of technical data includes provision of assistance
to foreign manufacturers of items which would be on the Munitions List
if manufactured domestically. This prohibition does not interfere with
First Amend. free speech protection when narrowly interpreted to apply
only to tech. data "significantly and directly related" to items on the
Munitions List. Conviction under 22 USCA 1934 (since repealed, but
similar to 22 USCA 2778, which applies now) requires that where tech data
has both military and nonmilitary uses, prosecution must establish accused
knew or had reason to know of its application towards a prohibited purpose.

US v Van Hee, 531 F.2d 354 (6th Cir, 1976).
Personal knowledge can constitute "technical data" for purposes of
regulations restricting export of munitions. Exemption applying to
"public domain" technical data applies only to technical data in
published form. Exemption for public domain tech data must be
claimed at time of export, not at trial, and package/letter must be
marked as claimed exempt.

US v. Donas-Botto, 363 F.Supp 191 (E.D.Mich, S.D. 1973).
"Technical data" as used in the ITAR includes "technical knowledge",
and its transmission is not protected by the First Amendment. 

The US also claims the right to prosecute for violations of the ITAR
committed by non-citizens while located in foreign countries, even
where the subject matter is owned by a foreign government. See
US v Evans, 667 F.Supp 974 (S.D.N.Y, 1987) for a chilling story indeed.

I'm going to be on vacation for a few weeks, and probably won't be
checking the list; in order to avoid misunderstanding, the summaries
above are my own and I believe they're accurate. I haven't found anything
which overturns or disagrees with the above. My own ideas about "freedom
of speech" don't match the above, but that's probably not surprising.

My questions about the above:

o	When does export take place? When the technical data leaves
	the country, or when it is transferred to a foreign party?
	(my guess is the latter, at least with respect to "technical
	knowledge")

o	Do I need a license from the State Department if I know
	how to do RSA and I want to go bar-hopping in Tijuana?
	(just kidding, but there's a real question in there
 	 somewhere.)

Discussion on the list about export regulation has focussed on violations
of the ITAR; but prosecution is also possible under 22 USC 2778, with
maximum penalties of $1M and 10 years in prison. Ouch.

If there's going to be an LA-area C-punks meeting, will someone please 
send E-mail?

Case law re ITAR and export control

greg＠ideath.goldenbear.com