ITAR Restrictions Expanding to Cover Firearms Info?

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

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  1. SSN Vet

    SSN Vet Member

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    Here we go again.... another incarnation of the Hush Rush bill from the political left.

    Are there still people out there who support the myth that you can support putting Democrats into power and not shoot the 2A cause in the foot?
     
  2. old lady new shooter

    old lady new shooter Member

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    Please somebody post clear talking points for letters

    I will gladly write my senators (not that Boxer or Feinstein will be moved in the least), representative, and whoever else should get letters about this, but I'm too new to this whole area to be able to compose a good letter about it from scratch. Please, you guys that have already read and analyzed it and have years of experience in the legal aspects of RKBA, post a list of clear talking points for letters.
     
  3. SilentStalker

    SilentStalker Member

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    It looks like it would benefit the community if someone that is good at writing and creating arguments would post a well thought out sample letter for others to follow. Who can make that happen? I don't think this is going anywhere but there have been plenty of things that have gone somewhere when many said they weren't. Its time to act and remain vigilant to what may be on the horizon.
     
  4. RX-178

    RX-178 Member

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    Agreed. We need to get enough of a plan together to move this to Activism.

    I don't think Fox News is going to do the legwork for us like they did with the M855, I saw a mention of this at the bottom of their front page for one day, and then it was gone.

    We need to start the legwork right now.
     
  5. barnbwt

    barnbwt member

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    Strict Scrutiny:
    1) Compelling Interest: "National Defense" is a skeleton key for all of government's desires. Fail.
    2) Narrowly Tailored: to a panel of judges who have never done anything more than shoot personally purchased trap guns (at best), and to a public largely ignorant of the technical corners of our hobby, I would argue restricting solely information pertaining to "defense article" firearms is quite defensible as a narrow focus/impact. Fail.
    3) Incredible Result: I think this is our one opening. If you can prove the rules' consequences will have ridiculous, plainly unjust impacts on even a small number of people, and that there is no good way to prevent this from happening (relying instead on bureaucratic discretion for sanity), you just might get a judge to go along with you. People have beaten the rap on NFA AOW charges related to vertical grips on pistols this way (don't try it at home, though, since the ATF is still prosecuting in spite of the repeated losses)

    I'm afraid the real problem here is the active ITAR law itself, whose conception and purpose are inherently somewhat hard to contain or square with constitutional restraint, but which are fully embraced as legal by decades of precedent. In a certain sense, the draconian restrictions proposed are inevitable, but in the same way as the 'inevitable' ban on civilian firearms ownership in America. We can still hassle regulators and our representatives to do what is right on a case by case basis and defeat these efforts as they pop up. But they will continue to pop up so long as these poorly conceived laws persist.

    TCB
     
    Last edited: Jun 9, 2015
  6. barnbwt

    barnbwt member

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    In the interest of making the discussion regarding my points here even the slightest bit understandable, I would request we try to organize our thoughts/questions about them in a similar order;
    1) Law's original justification/purpose
    2) How the law works & its current reach in general
    3) The law's current reach regarding firearms and assoc. media
    4) Literal meaning of the proposed changes (not their implications)
    5) Impact on media assoc. with firearms
    6) Impact on the online firearms community
    7) Possible motivations/justification for the proposed changes
    8) Ultimate long term impacts on the public in general (inside and outside our little clique)

    I would also request that before simply dissecting my thoughts (as I myself am bad about doing), instead phrase what you yourself think as a substitute idea. This will hopefully cut down on link-backs and quote bubbles ;)

    I'm afraid both my understanding and organization of thoughts are not quite where I want them yet, to craft a letter to be sent to the State Department or my representatives. I don't care to fire off a knee-jerk "me no like!" squeal, since it damages my/our reputations greatly, even if our concerns are valid. Telling our reps to do something without giving them the tools to actually educate/convince their peers and coworkers or a plan of action, is also a bit pointless (unless there's an urgent vote, which is not the case here). We have plenty of time to craft a quality, defensible objection before this thing moves on in the news cycle (it appears to still be on the upswing, so I figure we have until this weekend to get something we can all agree to run with). And it's a good thing, too, since ITAR regulatory specifics don't exactly lend themselves well to bumper sticker slogans.

    We've got to be foreceful, but also clever & careful, or we won't have damaged the proposed regulations in the slightest. If we can work up a short n sweet talking point list that accurately reflects the situation, then by all means let slip the trolls of war upon Arfcom :D

    So, all that other junk aside, here is my layman's, non-matriculated, stray-dog mutt's understanding and opinions on the story so far;

    The ITAR law's justification:
    Back during the Cold War, Russia (and China) was shamelessly ripping off our technological developent regarding arms and electronics, to the extent that they faithfully reproduced a fleet of B52 strategic bombers. In addition to cloak & dagger industrial espionage for which we already had a raft of (quite flexible/permissive) laws to punish, an awful lot of information was obtained through military contractors. At this time, the contractor base was expanding rapidly to support the ever growing and diversifying military industrial complex, which made an ever-increasing number of non-government entitites that could be contacted and compromised. Things like replacement part orders by customers who had never bought the planes, requests for technical support or detailed spec sheets, and the like could surely not be sufficiently covered by even an army of counter intelligence specialists. So the companies were made responsible for safeguarding designated material at the pleasure of the government, in order to protect our strategic/industrial standing. The law set up a bureaucracy charged with tracking sensisitive information, and ensuring compliance with security protocols among those it registers.

    How the law works currently as far as small arms:
    Apart from true-blue classified programs (weapons not known to exist in the public realm), the only items designated as "defense articles" (subject to direct oversight by the ITAR folks) are physical components of the weapons themselves. You can talk about anything you want, so long as it isn't itself classified or proprietary info (protected by other laws), but you cannot ship your French friend an AR buffer tube retaining whatsit without contacting the State Department. You can instead give him dimensioned drawings for the buffer tube retaining whatsit so long as no one's owned intellectual property is compromised. That many do mail items overseas to foriegners or OCONUS US citizens without incident does not designate it a legal export (incidentally, most other nations --even the neutral Swiss-- have their own equivalent of ITAR that may be more or less strict, and can include extradition for prosecution!) Since one needs an ITAR registration to simply create, let alone store, "defense articles," everyone who has built an AR15 is technically in violation already, but such a ridiculous excercise as prosecuting everyone for it is impractical/untenable. However, individuals (Cody Wilson) have found themselves required to submit to registration after being contacted by the State Dept and are thereafter bound by ITAR regarding disclosure of their information. Subsequent violations are understood to be prosecutable.

    What I think the proposed changes seek to literally accomplish:
    I'm sure there's a clear motive behind these changes, but you wouldn't spot it for reading through once or twice. It is a very complex area of regulation, clearly written in a purposely confusing manner. However, the thrust appears to be an expansion of the definition of "defense articles" subject to ITAR controls to the technical data surrounding current defense articles. Any data crucial to reproducing, countering, etc. "defense articles" will be classified as a "defense article" itself, making it subject to ITAR controls and procedures for disclosure, storage, and disclosure.

    The other change is to formally classify the posting of "defense article" data online as an "export." I'm positive you would have been prosecuted for posting ITAR materials online in the past, as it clearly cannot be controlled in the manners required by the law at that point, but apparently the practice was not formal (had to be justified on a case-by-case basis in court, I assume)

    What this means for gun information:
    -All information currently in the public domain cannot be removed from it, therefore will remain unrestricted (though likely monitored to some degree, as it still pertains to "defense articles")
    -New information regarding the technical details of "defense article" weapons --guns and ammo-- will now be treated as "defense article" media, and may not be generated, disseminated, or stored freely

    What this means for the online gun community:
    -All technical forums will be 'frozen' by compliant moderators, so no new information may be added to them
    -Communities dedicated to reloading, ballistics, firearm design, firearm building, silencers, and usage tactics will become static reference sites
    -Forums will be self-policed by moderators to ensure new posts containing likely ITAR data are scrubbed and the posters warned/banned in order to avoid potential legal liability, same as they do now for advocacy of other illegal acts (violence, NFA violations)
    -It will be illegal to generate or store ITAR "defense article" media even for private persons, though enforcement will be limited by resources to the most egregious offenders (most likely businesses and rabble-rousers)

    Possible motivations for the changes:
    -There was no mention of the internet in the original law (it predates it) and all common means of export need to be addressed for sufficient clarity (fair enough; putting stuff online is the same as shipping it outside the borders)
    -Due to the fall of Iraq and the middle east at large, there is a lot more US materiel in enemy hands than at problaby any point in history. Shielding them from access to the details regarding its use, maintenance, etc. is "more critical than ever." (Somehow I don't think it's right that all of us pay for their screw up, though.)
    -Advances in CNC and rapid prototyping (meaning cost reductions) put them within reach of ordinary Americans as well as those who would do them harm. The government, fearful of both, seeks to limit their technological development in the firearms realm (good luck)
    -Failing to pass universal background checks or an assault weapons ban, the new goal was to make it nearly impossible to discuss the technical aspects of the manufacture of firearms outside federal oversight (i.e. privately made "ghost guns") without violating what are essentially espionage laws

    Ultimate impacts of the rule change:
    -Gradual diminishing of public participation, then interest, then ability, then knowledge, of the private manufacture of firearms (so the only remaining source is federally licensed dealers who make record of all transfers)
    -Ossification of the private firearms industry, as well as the corporate one (less innovation)
    -A dulling of the online gunnie community, having been barred from discussing the most fascinating aspects of firearms. Mostly "my favorite gun" and "existing caliber vs. existing caliber" and "existing platform vs. existing platform" debates sourced solely from static source material (gradually decreasing as sites go dark)
    -Occaisional high profile arrests/prosecutions of individuals for distributing 'advanced gun plans' and the like
    -As new debate stagnates, diversity of existing topics will decrease sharply (nothing but AR/AK/Glock/1911 threads going forward), as will market offerings to suit them
    -Fewer and fewer individuals online or in general will have any more than a basic understanding of operations and safety regarding firearms (i.e. gunsmith sear jobs and gun mods will once more become highly variable and dangerous)
    -A small, but very real portion of gunowners will give up trying to abide by these restrictive laws, and dissimenate 'defense article' data freely amongst each other through some means unreachable by the government. Having broken one set of very serious laws, there will be little to no moral barrier to them breaking NFA, GCA, or other prohibitory laws, or even laws in general. This small population will have a corroding on law-abiding in general (see communities with rampant illegal drug use inevitably plagued by general lawlessness even apart from the drug-addicted)
    -A clear precedent for the severe restriction of information deemed 'dangerous' to our national standing or military advantage (ie Wikileaks, whistleblowing, ATF Tech Branch determinations and regulatory changes, military autobiographies, and eventually political speech & dissent in time of war, assuming by then "we have always been at war")

    It is here we see the true limitations of this forum format. There is not really any good way for us to collaborate on, well, anything. We can only data-dump or Fisk one another's arguments until all that is left is a towering inferno of misperception, misrepresentation, and confusion. At some point, a parliamentary system closer to formal debate truly is necessary for any sort of resolution on all but the simplest of issues. Just an FYI for anyone considering making an internet forum some future form of governance :D

    TCB
     
  7. RX-178

    RX-178 Member

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    I would say the list of potential impacts is a great starting point.

    The argument based on those impacts should focus on how it is undeniably a chilling effect on protected speech. In fact, I would find it hard to see how it's not an outright direct restriction on free, protected speech.
     
  8. RX-178

    RX-178 Member

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    I'm going to toss in some precedent information as well, that could be used in the content of comments.

    From defensetradelaw.com

    So the application of ITAR to restrict protected speech has already been struck down in the past. Yet they still attempt to codify it to further restrict speech now.
     
  9. Frank Ettin

    Frank Ettin Moderator Staff Member

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    As i noted, a problem with these proposed regulations is that (post 64):

    There might well be situations in which a court will most likely sustain application of the proposed regulations, e. g., someone disclosing legitimately classified information. But the proposed regulations seem to do a poor job of limiting their reach to information that may be restricted.
     
  10. ConstitutionCowboy

    ConstitutionCowboy member

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    Are you not concerned that these proposed regulations/revisions might not be constitutional at their face value regardless of their ambiguity and vagaries? I can only gather that you view the underlying abridgements to free speech as acceptable and are only concerned with the loose wording. Is this true?

    While I agree that there is too much available latitude in the wording, I believe the underlying attacks stifle the freedom of speech at the least. As has been pointed out, there are laws and regulations on the books to protect sensitive government secrets and there appears to be no need for what many call a compelling government interest for further regulation that will, in the end, only abridge the freedom of speech.

    It appears to be primarily an attack on the freedom of speech of the active Second Amendment support community and otherwise an unnecessary redundancy in protecting government secrets. Obviously, the authors of this proposal are not going to come out and say it is an attack on the freedom of speech. No advocate of gun control would. For the gun control advocates it appears to be just another means toward their end.

    Woody
     
  11. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Don't make statements like that without citing statutory and decisional law to support your claims.

    The reality is that constitutionally protected rights may be subject to limited regulation, and the issue here will be whether or when these regulations impair free communication beyond what the courts have held to be permissible limits.

    This has been a productive, focused discussion. Let's keep it that way.
     
  12. ConstitutionCowboy

    ConstitutionCowboy member

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    My apologies. I thought you might already be cognizant of the US Code regarding this. It is 18 U.S.C. § 798 and can be viewed here. I am not aware of any court action that guts this code.

    Yes, it has been focused and I will continue to be focused. I am interested in your opinion of the underlying regulation proposals concerning their efficacy. Your opinion is welcomed.

    Woody
     
  13. barnbwt

    barnbwt member

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    I as well, since Frank is one of few among us properly prepared to do a thorough, supported analysis.
     
  14. Frank Ettin

    Frank Ettin Moderator Staff Member

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    That only serves to punish disclosure. It does not serve the purposes intended by these regulations.

    I doubt it, Woody. You never are.

    I doubt that as well. You just appear to want to stir the pot as you generally wind up doing.

    Thanks for the vote of confidence, but I really have no opinion on the possible efficacy of the regulations. That's beyond the scope of a legal analysis.

    The real issue is whether or when they would be properly applicable within legal and constitutional limits.
     
  15. MEHavey

    MEHavey Member

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    This is literally just the start of what you are dealing with when it comes to ITAR:

    ENUMERATION OF ARTICLES § 121.1 General. The United States Munitions List.
    (a) The following articles, services and related technical data are designated as defense articles and defense services pursuant to §§38 and 47(7) of the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)). Changes in designations will be published in the FEDERAL REGISTER. —FIREARMS, CLOSE ASSAULT WEAPONS AND COMBAT SHOTGUNS
    *(a) Nonautomatic and semi-automatic firearms to caliber .50 inclusive (12.7 mm).
    *(b) Fully automatic firearms to .50 caliber inclusive (12.7 mm).
    *(c) Firearms or other weapons (e.g. insurgency-counterinsurgency, close assault weapons systems) having a special military application regardless of caliber.
    *(d) Combat shotguns. This includes any shotgun with a barrel length less than 18 inches.
    *(e) Silencers, mufflers, sound and flash suppressors for the articles in (a) through (d) of this category and their specifically designed, modified or adapted components and parts. (f) Riflescopes manufactured to military specifications (See category XII(c) for controls on night sighting devices.)
    .....
    (i) Technical data (as defined in §120.10 of this subchapter) and defense services (as defined in §120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (h) of this category. Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.

    https://www.pmddtc.state.gov/regulations_laws/documents/official_itar/ITAR_Part_121.pdf

    I say again, watch very carefully how these "regulatory interpretations begin to play out.

    ...and pay careful attention to this chapter as referenced above:
    https://www.pmddtc.state.gov/regulations_laws/documents/official_itar/ITAR_Part_120.pdf -- especially as defined under 120.9 and 120.10

    It is not just the physical article. Rather it includes drawings, photographs, plans, instruction... etc, etc, AND any assistance given to foreign persons in the development, design, engineering, testing, repair maintenance, ... or even use of military articles as above.

    Think about the membership in forums such as this in that light....
     
  16. Averageman

    Averageman Member

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    Quote:
    Originally Posted by Averageman
    Clearly these are being used as legislation under the guise of mere "rule" changes.
    The idea that the legislative branch should take a back seat to a bureaucrat at an agency where he/she was appointed to this position and not elected by the citizens should be the issue....

    However, Congress by legislation authorized the President to make these decisions. See 22 USC 2778(a)(1):
    Quote:
    ...the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services. The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services.....

    That, by the way, is core to the rule making power of an administrative agency. An agency can adopt regulations only when it has been authorized to do so by Congress.

    I would really like to see that challenged Frank.
    In essence, if the legislative branch chooses to do this, why have a legislative branch?
    I'm not sure how the SCOTUS would look at this if challenged.
     
  17. Frank Ettin

    Frank Ettin Moderator Staff Member

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    The delegation by Congress of rulemaking authority to administrative agencies has been well tested in court. See, for example, Hampton Co v. United States, 276 U.S. 394 (Supreme Court, 1928).

    It's a done deal.
     
  18. barnbwt

    barnbwt member

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    I thought Congress was clearly barred from ceding its legislative authority in the constitution, but subsequently made up the separate but equal (maybe slightly lesser) realm of 'regulation' in order to do just that.

    TCB
     
  19. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Yes and no. Here's how it was addressed in Hampton Co (at 406 -- 407):
    So Congress may authorize the Executive Branch to make regulations when Congress has determined that is necessary or desirable for the purposes of implementing a law enacted by Congress.
     
  20. alsaqr

    alsaqr Member

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    Federal rulemaking:

    fas.org/sgp/crs/misc/RL32240.pdf

    Yep, some would have us believe that in spite of numerous SCOTUS rulings affirming our right to free speech; this proposed action will stop us from discussing guns on the web.

    IMO: This is double layer tinfoil hat stuff.
     
    Last edited: Jun 10, 2015
  21. MEHavey

    MEHavey Member

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    "Free" speech is limited, and ITAR limits it big time.
    If State decides that ITAR now applies to gunboard information, defying it is done at your peril.
    Right or wrong, I would recommend you let someone else put it to the test at that point.
     
  22. leadcounsel

    leadcounsel member

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    Prior restraints on speech = big slippery slope.

    Hopefully there's some Reps and Judges out there interested in protecting the 1st and 2nd.
     
  23. alsaqr

    alsaqr Member

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    NAMBLA members get on the web. So long as no photos of naked boys are posted there is no problem.

    Folks discuss nuclear weapons design on the web. Guys talk about making explosives on the web. Some have posted videos of the process of making TATP. One can learn how to manufacture nerve gas on the web.

    i don't see the feds coming after people for discussing guns on the web.
     
  24. hso

    hso Moderator Staff Member

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    The proposed changes need to protect free speech as they also protect truly sensitive information. That means a better job than we've seen in the past decade needs to be done with theses proposed changes.
     
  25. hso

    hso Moderator Staff Member

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    From Cody Wilson's Ghost Gunner newsletter/email -

     
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