New ITAR "interpretation" ....and this Forum

M

mehavey

New member
> Even as news reports have been highlighting the gun control
> provisions of the Administration's "Unified Agenda" of regulatory
> objectives (see accompanying story), the Obama State Department
> has been quietly moving ahead with a proposal that could censor
> online speech related to firearms...
>
> demanding that anyone who puts technical details about arms
> and ammo on the web first get the OK from the federal government
> — or face a fine of up to $1 million and 20 years in jail.
>
> In their current form, the ITAR do not (as a rule) regulate technical
> data that are in what the regulations call the "public domain."
> ...officials now insist that anything published online in a generally-
> accessible location has essentially been "exported,"
>
> ...published in the June 3 issue of the Federal Register... "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."
https://www.nraila.org/articles/20150605/stop-obamas-planned-gag-order-on-firearm-related-speech

Now if that isn't shutting down the entire discourse on everything firearm related, I don't know what is.
Get control of the language that can be used in any area, and you have control of the area -- Gee, where
have we heard this concept before ?
 
The actual documentation is here [pdf file].

This looks fairly problematic.

The Department proposes to revise the definition of ‘‘technical data’’ in ITAR § 120.10 in order to update and clarify the scope of information that may be captured within the definition. Paragraph (a)(1) of the revised definition defines ‘‘technical data’’ as information ‘‘required’’ for the ‘‘development,’’ ‘‘production,’’ operation, installation, maintenance, repair, overhaul, or refurbishing of a ‘‘defense article,’’ which harmonizes with the definition of ‘‘technology’’ in the EAR and the Wassenaar Arrangement. This is not a change in the scope of the definition, and additional words describing activities that were in the prior definition are included in parentheticals to assist exporters. Paragraph (a)(1) also sets forth a broader range of examples of formats that ‘‘technical data’’ may take, such as diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, manuals or documentation, or electronic media, that may constitute ‘‘technical data.’’
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The relevant ITAR section is here.

The proposed revised definition also includes a note clarifying that the modification of the design of an existing item creates a new item and that the ‘‘technical data’’ for the modification is ‘‘technical data’’ for the new item.
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I was just coming here to start a thread on this.
Here is a link to a Washington Examiner article on this topic.
It suggests,according to NRA,that technical information on firearms may fall under an arms treaty
And such things as Youtube tech vids and forums like TFL may actually be prosecuted for postings.
I do not know how factual all this is,but it does seem worth a heads up,discussion,and perhaps political action.

http://www.washingtonexaminer.com/n...tened-by-new-obama-regulation/article/2565762
 
Is this even in the slightest bit enforceable?

Not like we say that UBC laws are unenforceable, but this would be on a whole other scale.

This would seem to cover almost literally everything related to firearms discussion. Reloading specs (even from manufacturers)? Gone. Receiver strengths, tolerances, parts machining, simple repair, caliber conversion, muzzle threading.

Am I being alarmist or does it seem like all of these things would be covered?

That would take out every firearms forum I'm aware of, all of the big news sites, and thousands of YouTube channels among many other things.
 
So is this technical data going to relate to any firearm in civilian hands or just the equipment in use by the military?

I can see where putting schematics and specs for nuclear detonators and biological warfare would not be something that should be allowed.
 
Dakota said:
Is this even in the slightest bit enforceable?
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Dakota, it will be "selectively" enforced.
(...and we've seen a lot of that "selectiveness" in the Justice system lately,... haven't we?)

It will be used to ruin a few lives, and effectively chill everyone else into silence.
 
I'd just like to know how-in-'ell a respectable militia is supposed to maintain its weepons if'n it's unlegal to talk about maintainin' its weepons!

"Operation"? How many states require or recognize the NRA "Basic Pistol" course as satisfying the requirement for "firearms safety training"? Part of that course is explaining how different types of handguns operate. Does this mean that every NRA instructor will have to apply to the State Department for permission to present a Basic Pistol class?
 
Folks, read the actual, proposed regulations. Read them carefully.

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):
...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...
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The regulations apply to "technical data" (§120.10(a)(1), (3)--(5):
(1)...Information required for the development (see §120.47) (including design, modification, and integration design), production (see §120.48) (including manufacture, assembly, and integration), operation, installation, maintenance, repair, overhaul, or refurbishing of a defense article....

(2)...

(3) Classified information for the development, production, operation, installation,...

(4) Information covered by an invention secrecy order; or

(5) Information, such as decryption keys, network access codes, or passwords, that would allow access to other technical data....
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But the regulations do not apply to information in the public domain (§120.11(a)):
Except as set forth in paragraph (b) of this section, unclassified information and software are in the public domain, and are thus not technical data or software subject to the ITAR, ...when they have been made available to the public without restrictions upon their further dissemination...
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Paragraph (b) of §120.11 excludes from the public domain information:
...if it has been made available to the public without authorization from:

(1) The Directorate of Defense Trade Controls;

(2) The Department of Defense’s Office of Security Review;

(3) The relevant U.S. government contracting entity with authority to allow the technical data or software to be made available to the public; or

(4) Another U.S. government official...
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So the information the regulations are intended to reach is rather narrowly defined. The difficulty here may 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.
 
If I'm following, Frank, this whole shebang is simply clarifying what isn't considered public domain. In that case, it doesn't seem to change much of anything.
 
Except it does open things in a way which might lead to having to fight too many of the battles in court.

I think that we do need to comment and push for a tightening of the regulations to more narrowly reach only information with real potential national security implications. Some of it's information that's been around in various forms and through various sources, and in one form or another is nothing new. It's the whole existing body of firearms knowledge, and much of what is posted here and through similar media is simply a rehash or reorganization or repetition in different words of the information.

I strongly doubt that the courts would allow these regulations to apply to that sort of information. But there is still the exposure factor.
 
It's a slippery slope.

Past & Current: It is legal to build a conventional non-NFA rifle using conventional tools in your garage.
Is giving a briefing with the conventional engineering plans at a gunsmith's conference for such a rifle now subject to ITAR?

Update: Is now the 3D software for such a rifle -- using a 3D printer for components -- now subject to ITAR ?


.
 
Frank Ettin said:
Except it does open things in a way which might lead to having to fight too many of the battles in court.
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Isn't that likely the real point of these (and other) regulations? The administration has lawyers working for it. At least some of them must know something about the law. But if Obama & Co., Ltd., can create more confusion and consternation for the pro-gun populace, and cause us to expend more dollars defending on multiple fronts that which should be inviolate, he is advancing his cause.
 
> “no agreement with a foreign nation can confer power on the Congress,
> or on any other branch of Government, which is free from the restraints
> of the Constitution.” The Court also stated that: “…an international accord
> that is inconsistent with the U.S. Constitution is void under domestic U.S. law,
> the same as any other federal law in conflict with the Constitution.”
Reid v. Covert, 354 1957/SCOTUS

HOWEVER.... We have already seen the power of "regulatory interpretation" ...which effectively means actual law/intent is irrelevant. It's how the Agency of interest "feels" about things of late.

I find it interesting that the Constitutional framework of the Republic was set up with intent that there should be no law that couldn't pass muster of getting legislative agreement within the established process. I.e., the People could exercise their individual free will except as narrowly limited by carefully considered legislative process.

That whole concept -- and the 10th amendment that summarized federal limitations thereto -- resides on the ashheap of "if the Congress won't act... I have my pen."
 
DDTCPublicComments@state.gov

Leave a comment. Prior restraint, censorship, chilling effect on speech, whatever you don't like about the proposed changes. You don't have to persuade the readers of your email just let them know what you think.
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This isn't quite enough. The subject line needs to be specific:

Email: DDTCPublicComments@
state.gov with the subject line, ‘‘ITAR
Amendment—Revisions to Definitions;
Data Transmission and Storage.’’
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And yes, let's all send comments. We have 60 days. That would expire August 2.
 
For new folk or folk that haven't checked this forum lately:

ITAR = International Traffic in Arms Regulations

UBC = Universal Background Checks

(I think this is correct.)
 
"Is this even in the slightest bit enforceable? "

Shut down the 10 biggest gun forums and see how quickly Gun Culture 2.0 withers and dies. We couldn't share the technical data key to objecting to the M855 ban, for instance.

The MG ban isn't very enforceable either, but gun owners are law abiding to a fault so there is little unlicensed dabbling by us in the 'dark arts'

TCB
 
I really think this a a push for the gov to get a head start on 3d printing. The way it is written as now, it looks like it can be expanded to be whatever they want. But I truly believe this is written so folks like the "liberator" inventor can be easier prosecuted when he puts his plans open source. The case they have against him now will likely fall apart w/o New laws
 
The way it is written as now, it looks like it can be expanded to
be whatever they want. But I truly believe this is written...
Click to expand...
If it exists, it will be used... to the fullest arcane/never-intended extent of the Reg (not the Law).
 
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