Federal regs II: State Dept’s new regs would transform the Internet beyond recognition

Federal regs II: State Dept’s new regs would transform the Internet beyond recognition
Or -- go ahead and mess with it. It's time.

Rusty Weiss called to our attention this morning an update to “arms trafficking” regulations posted to the Federal Register last week by the State Department.  The National Rifle Association has sounded the alarm, having recognized quickly how these new regs would effectively shut down the exchange of information among gun enthusiasts on the web.

But the chokehold effect would be felt in other quarters as well.  This move by the State Department is an absolutely terrible idea across the board.  Even if it dealt with international trade in pork bellies or chicken parts, rather than arms, it should still be opposed strenuously on principle.

Its effect will be to make a tremendous chunk of what people talk about on the web every day subject to prior restraint, by, of all agencies, the State Department – or, potentially, other federal agencies, depending on topic.

If these regulations are actually implemented, for example, they would have an impact on online help forums for computer applications – because some of those applications can be put to military use.  They would have an impact on forums in which users discuss computer simulation technology, online encryption, and the operation of commercially sold drones.  The online topics to which the new regulations could be considered applicable are almost endless.  (See the second section, below, for links and information on why this is.)

It’s not just gun forums, although that’s certainly enough to get people galvanized.  The problem is bigger: it’s a whole basic mindset regarding the topics for which the federal government should have prior restrictive powers over us, when we want to discuss them online.

Suppose the State Department has the best will in the world, and doesn’t want to shut down Internet conversations.  It just wants to have a regulatory veto over them, in case they “pose a risk”; i.e., of posting technical information that foreign users could then easily get hold of.  That, after all, is the concept behind the regulation of information about arms and military-related equipment.  (Again, more on that below.)

Even with good intentions, the regulations are still unenforceable, except by regulating specialized forums and setting technical parameters for the scope of discussions in them.  Think about what it would take to have that kind of regulation.  You can’t just wave a wand and say “thou shalt not” – or, at least, if you do, you might as well not have the regulations in the first place.

Registering online forums on specialized topics with the State Department?  Prohibiting unregistered forums?  Having posted rules that outline the technical scope permitted for discussions?  Waiting, in enforced silence, for State to update those rules when a new technology or technical issue arises?

Sending the FBI out to patrol the Internet for prohibited discussions held on other, non-specialized, unregistered forums?  (E.g., graduate-level gun-tech talk at Liberty Unyielding.)

These aren’t laughable possibilities.  They represent a translation for the Internet of the current methods for restricting formal publishing (e.g., in books and journals) on military-related technical information.  And, as outlined in the section below, that’s precisely the intent of the new regulations:  to explicitly apply the “ITAR” rules to the Internet.

It’s appalling, when you think about it, that State faced this fork in the road on arms-related information “publishing” – what should we do, now that there’s an Internet? – and made exactly the wrong decision.  But what we the people need to do at this point is move on from the discouraging nature of that development and set this thing right.

I don’t know that there’s any way to salvage, for the Internet, the federal government’s current solution for the problem of publicly-disseminated technical information on arms and military-related equipment.  The issue probably requires a wholesale reworking by the legislative branch.  The current rules were written for a time when it wasn’t possible for enthusiasts to discuss the technical details of potentially sensitive items in forums accessible to people on the other side of the world.  The enthusiasts and the discussions have always been there; it’s the Internet that’s new.

I note further that what we’re talking about here is people with technical knowledge discussing things they happen to know about; we’re not talking about people with clearances discussing things they know are classified.  We already have laws to address the latter consideration, and those laws apply to the actions of individuals – not to restricting speech in general in a communications medium.

Regulating Internet exchanges is the wrong thing to do, to try to address this arms-tech concern.  It’s not acceptable.  Congress needs to take hold on this, and remove from the State Department the authority to impose such regulations on the Internet.

Background

The Washington Examiner has a handy quote from the NRA, which clarifies where this is all coming from.  As mentioned above, the regulation of information publishing about arms and military-related equipment isn’t new.  The U.S. federal government has sought to restrict such information in the public sphere for a long time, and the reasons aren’t necessarily foolish or outdated.  What’s new with the latest regulatory ukase from the State Department is the explicit statement that the department wants to establish a prior veto over what people say on the Internet.

Here’s the passage from the NRA post, referring to the baseline regulatory authority, which comes from the U.S. International Traffic in Arms Regulations (a group of regulations called ITAR):

In their current form, the ITAR do not (as a rule) regulate technical data that are in what the regulations call the “public domain.” Essentially, this means data “which is published and which is generally accessible or available to the public” through a variety of specified means. These include “at libraries open to the public or from which the public can obtain documents.” Many have read this provision to include material that is posted on publicly available websites, since most public libraries these days make Internet access available to their patrons.

The ITAR, however, were originally promulgated in the days before the Internet. Some State Department officials now insist that anything published online in a generally-accessible location has essentially been “exported,” as it would be accessible to foreign nationals both in the U.S. and overseas.

With the new proposal published on June 3, the State Department claims to be “clarifying” the rules concerning “technical data” posted online or otherwise “released” into the “public domain.” To the contrary, however, the proposal would institute a massive new prior restraint on free speech. This is because all such releases would require the “authorization” of the government before they occurred. The cumbersome and time-consuming process of obtaining such authorizations, moreover, would make online communication about certain technical aspects of firearms and ammunition essentially impossible.

Paul Bedard’s Washington Examiner post then supplies the State Department’s summary verbiage from the Federal Register entry (which runs to 14 pages).

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.

So what do the ITAR apply to?  For that, we turn to a nicely organized web summary here, provided by the law firm Williams Mullen.  The site explains:

At the core of the ITAR is a list of products called the U.S. Munitions List (“USML”).  The USML contains a wide array of products as well as software, technical data and services.   If a company’s product, software, technical data or services are identified on the list, the company is subject to the ITAR requirements.

The USML contains twenty-one broad categories of products, ranging from firearms and military vehicles to computers and communication equipment.  As described above, the intent behind the regulations is to cover military products, however, over time the USML has expanded to cover many items that have become commercial in nature.  Examples of items covered on the USML are:

  • Electronic systems and computers designed, modified or configured for intelligence, security or military purposes;

  • Military training services and equipment;

  • Drone aircraft;

  • Command, control and communications systems including radios (transceivers) and identification equipment;

  • Navigation systems;

  • Protective personnel equipment and shelters;

  • Naval vessels and related equipment, parts, technologies and software;

  • Underwater sound equipment;

  • Flight control products, software and technologies;

  • Satellites, launch vehicles and ground control equipment, including parts, technologies and software;

  • Classified products, technical data and software;

  • Anti-gravity and pressure suits, atmosphere diving suits;

  • Body armor;

  • Auxiliary military equipment.

Williams Mullen has the list of 21 official USML categories further down the page.

You and I have no idea whether we are “making available to the public ‘technical data’ subject to the ITAR” when we post comments in online forums.  Commercial companies pay lawyers to keep them on the right side of the ITAR, but for the average enthusiast posting online, the only realistic way to avoid breaching ITAR is to be subject to prior restrictions on our posting options (i.e., what forums we may legally discuss technical issues in) and the scope of our commentary (i.e., rules on what we can talk about).

That’s what the State Department’s newly “clarified” regulations have to portend, if State is really serious about imposing them.  We must just say no to this one.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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