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ITAR Restrictions Expanding to Cover Firearms Info?

Discussion in 'Legal' started by barnbwt, Jun 7, 2015.

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  1. barnbwt

    barnbwt member

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    https://www.nraila.org/articles/20150605/stop-obamas-planned-gag-order-on-firearm-related-speech
    http://www.gpo.gov/fdsys/pkg/FR-2015-06-03/pdf/2015-12844.pdf

    Has anyone found corroborating interpretations for this planned expansion of ITAR authority? The purpose of ITAR was to prevent foreign access to domestically developed proprietary information critical to the development of military products, but it has lately become a fledgling gun control tactic, with the potential to become a serious one.

    <See links below to submit comments to the proposed federal register changes>

    Like most laws passed in the name of National Security (aka; The Greater Good) it sounds like a good idea, but has a number of unintended consequences. Basically, it allows a board of bureaucrats in the State Dept to designate specific information as too dangerous to 'export' to foreigners. I believe some justification is required, but I imagine the process is likely something of a rubber stamp unless lobbied. Typically cutting edge weapons R&D, stuff developed for domestic military contracts, and information critical to military superiority (i.e. 'how to build a nuke'). It is similar in concept to the security classifications (Secret, Top Secret, etc.) but covers stuff outside the government's possession. Violations are punished even more severely than NFA laws.

    Moreover, in order to merely generate this content (when the State Dept knows you intend to do so) one must be federally licensed, basically as a government contractor, to continue their R&D. This to prevent the unintentional export or uncontrolled spread of the information domestically.

    It is easy to see how this power could be abused, though so far it has not had very much influence outside industry (either industrial product development, or foreign commercial sales). Every so often you'll hear about someone getting in trouble for selling thermal scopes to Russia, and many licensed SOT dealers who produce machine guns pay thousands in ITAR fees annually to comply (thank you Hillary Clinton, for that). But recently Cody Wilson of Distributed Defense (of printed AR, printed Liberator, and now Ghost Gunner CNC fame) was threatened with prosecution if he did not cease distribution of his 3D Liberator files online.

    The internet is accessible to foreigners, so anything placed there qualifies as an export. What the feds alleged was that the Liberator constituted a national security risk because it was a cutting edge technology with military potential to damage our strategic standing. This of a single-shot 32acp pistol that still relies on metallic components and has a life of a couple shots, maximum. Wilson complied, since by that time he'd already obtained an FFL to pursue his 3D printing research without interference (he'd been threatened previously by the ATF in that regard, and so became licensed to cover himself). He likely now pays ITAR fees of thousands of dollars to continue research on pistols like the Liberator, and to produce the CNC programming for Ghost Gunner (which must be delivered via thumbdrive with the unit, since hosting it online would be a violation, is my understanding)

    The NRA asserts that our benefactors are planning to expand the scope of ITAR 'defense articles' (stuff they can regulate) to include the mere technical data needed to produce firearms. Blueprints, measurements, detailed instructions, photographs. Presently, for an 07 SOT assembling AR kits, ITAR must be paid. But this rule change would essentially shut down the vast majority of technical gun discourse on sites such as this one, as well as a trove of literature. Obviously the full enforcement of the rule change would be untenable, due to centuries of prolific content generation, but it could be used to go after the more popular internet gun and gun building forums.

    I believe the intention is to restrict access to the various "how to" videos for finishing 80% AR15's, since AR platforms seem to be the sole focus of all proposed federal gun restrictions in the past 3 years. As with M855, there is a comment period for these changes, and we need to make ourselves heard. But we need to do so intelligently, which is why I am seeking supporting information for the proposed changes, so we know exactly what they are and how they will seek to strip us of our right to free speech regarding firearms. The second amendment cannot protect the first if we can't share how to produce arms, and the second will not persist while we cannot communicate freely.

    If you either know the details, or feel like commenting half-cocked anyway;
    [email protected]
    regulations.gov

    TCB
     
    Last edited: Jun 8, 2015
  2. barnbwt

    barnbwt member

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    I am not a legal scholar, just a technically-minded engineer. This section of the proposed changes worries me greatly. I would greatly appreciate one of the legally-qualified here to take a few minutes looking at the text of the .pdf linked above, and tell me if my interpretation is hyperbole.

    "This
    rulemaking proposes that the electronic
    transmission
    of unclassified ‘‘technical
    data’’ abroad is not an ‘‘export,’’
    provided that the data is sufficiently
    secured to prevent access by foreign
    persons
    . Additionally, this proposed
    rule would allow for the electronic
    storage of unclassified ‘‘technical data’’
    abroad
    , provided that the data is
    secured to prevent access by parties
    unauthorized to access such data.
    The
    revisions contained in this proposed
    rule are part of the Department of State’s
    retrospective plan under Executive
    Order 13563 first submitted on August
    17, 2011."

    Basically, the Reloading and Gunsmithing (and innumerable detailed discussions of technical aspects of both) forums are okay, so long as THR is only accessible to US-based personnel licensed by the State Dept, and so long as all information is stored on US servers or likewise inaccessible to foreigners. We all know the internet doesn't work that way, and that this forum could not exist in any form under such restrictions to membership/access. Login would be required, and only after each member was registered with the State Dept, likely paying a prohibitory fee.

    http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf
    (warning; it is an impenetrable morass of biz-speak and vague dynamic actualization facilitations, whose contents clearly cannot be drawn upon to support anything like the above)

    TCB
     
  3. Lone Ranger

    Lone Ranger Member

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    What worries me is what else will the gov consider sensitive speech/information that previously wasn't.

    Below from an article:


    Below are the State changes drawing the NRA fire:

    Paragraph (b) of the revised definition explicitly sets forth the Department's requirement of authorization to release information into the ''public domain.'' Prior to making available ''technical data'' or software subject to the ITAR, the U.S. government must approve the release through one of the following: (1) The Department; (2) the Department of Defense's Office of Security Review; (3) a relevant U.S. government contracting authority with authority to allow the ''technical data'' or software to be made available to the public, if one exists; or (4) another U.S. government official with authority to allow the ''technical data'' or software to be made available to the public.

    The requirements of paragraph (b) are not new. Rather, they are a more explicit statement of the ITAR's requirement that one must seek and receive a license or other authorization from the Department or other cognizant U.S. government authority to release ITAR controlled ''technical data,'' as defined in § 120.10. A release of ''technical data'' may occur by disseminating ''technical data'' at a public conference or trade show, publishing ''technical data'' in a book or journal article, or posting ''technical data'' to the Internet.

    This proposed provision will enhance compliance with the ITAR by clarifying that ''technical data'' may not be made available to the public without authorization. Persons who intend to discuss ''technical data'' at a conference or trade show, or to publish it, must ensure that they obtain the appropriate authorization.
    Paul Bedard, the Washington Examiner's "Washington Secrets" columnist, can be contacted at [email protected].
     
  4. MartinS

    MartinS Member

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    Send them a comment, prior restraint and censorship. The fine legal details don't matter, they are going to use this and we need to make noise. Don't let them define you into a criminal.
     
  5. steelerdude99

    steelerdude99 Member

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    http://bearingarms.com/constitution...bafbp&utm_medium=fbpage&utm_campaign=baupdate

    I saw the above article and after reading its references, it lead me to 2015-12844.pdf. The topic seems so overly-broad it would make it unfeasible to enforce. Maybe the intent is selective posturing by threatening to prosecute anyone posting about gun, reloading sites, powder mfgrs. or anyone doing anything that the administration disagrees with. They'll selectivity stifle free speech claiming the internet is a "world wide forum". Beretta's posting the 9mm M9's specs would be claimed to be "weakening our Military"; so take it down or else.

    It would be an impossible job to stop everyone from posting anything and all things even remotely technical. Not that they won't try.

    chuck

    PS: All this the day after the admission that hackers stole OPM's data going back to the mid-1980s. They knew since December.
     
  6. barnbwt

    barnbwt member

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    "Chilling" the speech is the key, same as hkw DDs files are still accessible, but Wilson himself won't publish similar content going forward.

    TCB
     
  7. MartinS

    MartinS Member

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    "overly-broad"...just the way they like it.
     
  8. X-Rap

    X-Rap Member

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    Not only forums but what about commerce, how many shooting sports suppliers have technical information on their websites.
    Good luck keeping this one non political.
     
  9. Sovblocgunfan

    Sovblocgunfan Member

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    I think the definitions of "defense article", and exceptions thereunder, are key here.

    That said, I don't trust the gummint worth a darn. No matter what the politics are, the potential for abuse is too great.
     
  10. Sunray

    Sunray Member

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    ITAR is a knee jerk reaction to the overwhelming fear the 9/11 attacks caused. (The thing is kind of funny if you read it. No exporting aircraft carriers or battle ships without the State Dept. permit.) Not surprising that power mad, empire building, uncontrolled civil servants would use an ambiguous regulations to further their plans.
     
  11. climbnjump

    climbnjump Member

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    Apparently, there aren't many exceptions - BB guns, muzzle loaders or other black powder arms and non-repeating shotguns.

    From the text of the proposed rule http://www.gpo.gov/fdsys/pkg/FR-2015-06-03/pdf/2015-12844.pdf

    Then from the text of the ITAR US Munitions list http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=22:1.0.1.13.58#se22.1.121_11

    Hopefully, someone more knowledgeable will come along and tell us that somewhere MORE exemptions are spelled out or that I'm just plain wrong in my interpretation.
     
  12. RX-178

    RX-178 Member

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    Whether the intent was to cover 80% lowers or not, the NRA is right on the money on what the legalese actually means.

    Basically, and most importantly, it means the US Government will no longer recognize the internet as being public domain, and instead consider it an export zone. The precedent this would set is FAR beyond firearms, because it would mean applying the underlying logic that any sort of behavior conducted on the internet can be regulated and licensed.
     
  13. Sovblocgunfan

    Sovblocgunfan Member

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    RX, you are right. No matter how you cut it, it don't feel right.

    Climbnjump, It seems you are right, but elsewhere there is a "can be defined as defense articles if it has these characteristics... " clause. See 120.3 of the link here: http://fas.org/spp/starwars/offdocs/itar/p120.htm#P120.2

    But still, there seems to be no reason for this change that doesn't lead to negative consequences.
     
  14. RX-178

    RX-178 Member

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    The good news is that we can go out and get opposition for this change from ALL sides of the political spectrum. Even people who are anti-gun tend to be most definitely against censorship of the internet.

    The precedent of the internet no longer being public domain will apply to EVERYTHING if this is allowed to stand. Basically anything and everything you do on the web will be under the jurisdiction of the US State Dept.
     
  15. Sovblocgunfan

    Sovblocgunfan Member

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    Agreed!
     
  16. RX-178

    RX-178 Member

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    Also, I think more than ever, we can seek out the video gamer crowd. I just read that this update also includes specifically considering 3D computer models to be equivalent to blueprints or schematics. There is NO definition or threshold of how detailed the model would have to be.

    Technically this means... let's say I pull this ancient box copy of Call of Duty 2 off of my shelf. It's set in World War 2 with authentic World War 2 weapons. I put the game on Ebay, and someone in Canada buys it. I ship it to them.

    I've just committed a felony violation of ITAR for EACH AND EVERY WEAPON MODELED IN THE GAME. The data is on the discs after all.
     
  17. Frank Ettin

    Frank Ettin Moderator Staff Member

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    I have no idea where you came up with this notion that the Internet is "public domain." In this context, that is not accurate. The Internet is a communications medium, and in this context "public domain" refers to the character of the information communicated -- not the medium on which it is communicated.

    Information in the public domain is basically information to which no one claims a proprietary right or which may otherwise be used or communicated without restriction, e. g., a book on which the copyright has expired. Information in the public domain remains in the public domain no matter how it is communicated. For example, if a copyrighted newspaper article quotes a book which is in the public domain, the quote remains in the public domain; and the newspaper acquires no rights to the quote, although it may restrict the use of the rest of the article.

    There is a great deal of non-public domain information communicated through the Internet.

    The Internet is also an international communication medium, and anything put out on the Internet is available to anyone anywhere in the world with Internet access (and, with regard to protected information, permission or authority to access it).

    And indeed it can be -- much to the same extent that similar behavior in other media may be regulated and licensed, e. g., the use of copyrighted materials, the dissemination of confidential information, etc. HIPAA regulations, for just one example, restrict the disclosure of private medical information no matter through what instrumentality the disclosure occurs, including on the Internet.

    The real issue here is whether and to what extent the government can regulate speech. It's clear that speech can be regulated to a limited extent.

    In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.

    But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

    Explain how you reach this conclusion based on the actual text of the proposed regulations (available here). Explain how the video game is "techincal data" as defined in section 120.10 and how it is not public domain information as defined in section 120.11.
     
  18. RX-178

    RX-178 Member

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    Electronic media isn't defined to exclude information contained in video games.

    And

    I would of course be very open to hear an alternate interpretation.
     
  19. barnbwt

    barnbwt member

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    The key is "technical data" RX. A rough-modeled shape or picture of a gun is not that; a dimensioned drawing, assembly procedure, or tactics manual would be.

    That said, I have to say I felt a chill when, after being away to do chores outside all day, I log in to find that this story is not only burning down all the blogs out there (figuratively, and potentially literally if it passes) but that many respected authorities on the subject seem to agree it is as bad as I feared it was.

    Mr. Frank Ettin being one of those folks, I'd love to hear your thoughts on this matter at some point, though I agree that it is very complicated and will obviously take some time to form a proper analysis for. That's why I posed this thread as a question; is this is bad as I think it is at first blush?

    At any rate, I've seen enough to conclude we need to nuke this thing with extreme prejudice. The State Department has much greater resources (and enforcement powers) than the ATF, but we need to make them sorry they ever proposed this garbage, same as we did for the M855 ban. The ATF now has some poor schmuck who will be devoting the remainder of his pitiful career to reviewing our comments as legally required, and we need to the same ten times over to the State Department. Force Kenneth Handelman to resign in disgrace (Deputy Asst Sec, Defense Trade Controls)

    There is no precedent whatsoever for these measures, seeing as highly technical books like Hatcher's Notebook or Chinn's The Machine Gun have been in public circulation for decades. ITAR didn't even exist until the mid '70's.

    TCB
     
  20. RX-178

    RX-178 Member

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    Hey, I'm sure that it would be one hell of a leap to consider the models in a video game from 2005 to be technical data, but I know I don't get to make that decision. I don't know the person who's going to make that decision. That decision isn't limited by the text I read to automatically exclude electronic video games made for the purpose of entertainment.

    And the argument could definitely be made that the game serves as a rudimentary 'tactics manual', since by imitating the actions depicted on the screen, someone would have a very basic ability to load and bring into action several examples of:

     
  21. ConstitutionCowboy

    ConstitutionCowboy member

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    Scratching the surface, so far all I find is ambiguity, especially when you begin a proposal with a loose and open-ended statement like "...to the extent appropriate."

    Just who's definition of "appropriate" will be applied here?

    We are under a constant barrage of attacks upon free speech and our Right to Keep and Bear Arms.

    [Reductio Ad Absurdum] Sooner or later, some of this stuff will stick, and if you are not careful which finger you use to pick your nose you will commit a felony.[/Reductio Ad Absurdum]

    Woody
     
  22. RX-178

    RX-178 Member

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    The ambiguity is what is of the greatest concern to me.

    Some of my scenario might seem hyperbolic and to a certain extent that's intentional. But from my admittedly limited knowledge on this, even that example of violating ITAR by selling a video game into Canada doesn't look to be impossible under the actual text of this.
     
  23. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Sigh! You need to learn to read these things much more closely. First, to "set the stage" you were talking about a video game and the images of guns in that game. So --

    1. Technical Data

      • Technical data subject to these regulations means (§120.10(a)(1)):
        Exactly how are mere cartoon images of guns in a video game required for the development, etc., of defense articles? On what bases, citing authority, do you contend that a court will agree that they are?

      • Technical data also includes (§120.10(a)(3) -- (5)):
        Clearly the cartoon images of guns on a video game are none of those.

    2. Public Domain

      • As provided in §120.11(a) data is in public domain is not subject to ITAR:
        Do you contend that the cartoon images of guns in the video game is classified? If so, on what bases, and on what evidence? Do you contend that the cartoon images of guns on that video game have not been made available to the public? If so, on what bases, and on what evidence?

      • You cited §120.10(b) which excludes from public domain information:
        Do you contend that the cartoon images of guns on that video game have been disclosed to the public without authorization by one of those government agencies/officials? If so, on what bases, and on what evidence?

    And exactly how is that technical data as defined?

    Yes, there is a lot of junk on the Internet. Whenever anything comes up that seems to gore some group's or other favorite ox, multiple folks with agendas but little thought start tossing all kinds of stuff around. We see it all the time, and the vast majority of the time these things are way overblown.

    No, it's not.

    First, this isn't especially new. ITAR has restricted the dissemination of sensitive information. These revisions merely refine a number of definitions.

    Second, given a number of leaks of confidential and classified information in recent years, it would be fatuous to imagine that the government would not try to shore up perceived holes.

    Third, if government can show a close association between particular information and a national security risk, the courts will sustain prior restraint.

    The difficulty here may relate to the scope of the definitions, and I have no specific comments at this time. But the issue will be whether the definition are too open potentially resulting in possibly needless litigation to decide if a particular application of the regulations result in a restriction repugnant under the First Amendment.

    Ultimately the courts, unless Congress wants to further legislate in the area. In any case, Woody, you're reading from the commentary on the proposed regulations (not the regulations themselves).

    Having limited knowledge of the law here is not likely to get you to meaningful conclusions.

    Until one looks at the question by closely reading the proposed regulations and understanding them in light or some basic legal principles.
     
  24. RX-178

    RX-178 Member

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    Mr. Ettin, I bow to your clearly superior knowledge of the subject, so I'm not trying to debate that anything you've written here is not true. I'm just going to try and go along with each of your points here to try and get a better understanding of this myself.

    Well, I really have no idea how a court is going to agree or disagree with anything anymore, but I think an argument could still be made:

    Now, the word operation there, it doesn't cite any subsection of a document for its definition, so I don't think it specifically means that an entire complete manual of arms needs to be involved in order to be considered 'information required for operation'. The game does depict reloading the various weapons in a nominally accurate manner (as in, imitating the actions you see would actually reload the gun, even if it's perhaps not the best technique being displayed), which is information required for the operation of the gun. It's not ALL the information needed to operate the real thing, but it's information that is needed.

    Well, to my knowledge I don't think they NEEDED authorization by the Directorate of Defense Controls to release a video game in 2005, which would stand to reason that they never GOT any authorization.
     
  25. barnbwt

    barnbwt member

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    "Yes, there is a lot of junk on the Internet. Whenever anything comes up that seems to gore some group's or other favorite ox, multiple folks with agendas but little thought start tossing all kinds of stuff around. We see it all the time, and the vast majority of the time these things are way overblown."
    Exactly; we saw it just yesterday with the change on pistol classification that appears --upon lengthy eye-screwing inspection-- to simply expand AOW definitions to pistols with folding grips, which I assume is intended to stop the production of NAA mini revolvers with the folding grip/trigger guards. Most of the other stuff they spoke of banning --'pager guns,' pen guns, and belt buckle guns-- were already banned.

    "First, this isn't especially new. ITAR has restricted the dissemination of sensitive information. These revisions merely refine a number of definitions."
    That's what worries me; this notion of restricting technical data related to actual defense articles is new. Previously, manuals and blueprints generated outside a government production or contracting scenario were generally not regulated this way, nor their creators subject to ITAR registration. Very infrequently, commercial products (like thermal scopes) would be restricted to certain nations under sanction, but I don't think the makers of the product were required to register to stay in business, and the manuals/technical data were not similarly controlled as defense articles. An AR15 solid model is not restricted, but Colt's Technical Data Package is (making ITAR a sort of "proprietary info" type of classification, falling short of the justifications to qualify as even "secret" info).

    It would seem under these regulations that I would need to register (and pay thousands) to merely design a single shot 22LR bicycle rifle on my own time and document its progress online (as I've already done on THR). Likewise, THR would need to register, take measures to safeguard its servers, and restrict access to similarly registered US users in order to function. Taking into account the immeasurable responsibility internet forums have for the resurgent popularity of firearms in this country, and their restriction is hardly "no big deal" when it comes to the ultimate consequences.

    "Second, given a number of leaks of confidential and classified information in recent years, it would be fatuous to imagine that the government would not try to shore up perceived holes.

    Third, if government can show a close association between particular information and a national security risk, the courts will sustain prior restraint."
    I know "blah-blah national security" is a popular justification for all sorts of things that used to be illegal these days, but that does not make it right. In fact, I would argue that the sole reason various courts --secret and public-- have ruled in favor of these restrictions was due to the absence of public outcry due to secrecy or underestimation of potential for abuse. I would argue that we need to strongly oppose what appears to be on its face a substantial expansion of federal authority by fiat.

    TCB
     
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