New ITAR "interpretation" ....and this Forum
- Thread starter mehavey
- Start date
Armorer-at-Law
New member
It gets complicated . . . If the rifle is covered by ITAR (and not every rifle is), then the 3D software for it almost certainly is. If you export the plans or technical data that is not already publicly available, it is the same (under the law) as exporting the rifle itself. Also under the law, "exporting" includes giving it to a non-US citizen in the United States.mehavey said:
If this was asked and answered, then please forgive me for missing it.
Aren't U.S. Patents, even those for firearms, their parts and sub-assemblies available in the public domain? I can see some may be classified. But surely not all of them.
How does ITAR regulate such public information?
Aren't U.S. Patents, even those for firearms, their parts and sub-assemblies available in the public domain? I can see some may be classified. But surely not all of them.
How does ITAR regulate such public information?
I think the idea of there being a "classified" copyright is self-contradictory. The entire point of a patent is that it IS public information, because otherwise no one would know it existed. How can one claim infringement upon a patent which is classified and therefore non-public?
carguychris
New member
Apparently there IS such a thing as a classified patent; under the Invention Secrecy Act of 1951 (most likely enacted in reaction to the infamous leaking of nuclear weapon design data to the Soviets), patents may be subject to several classes of secrecy orders, and interestingly, the gov't is allowed to impose a secrecy order on a patent application submitted publicly by a private party! 
However—at least to me—this raises the question of why the ITAR restriction would be even necessary given that it's already a crime under 35 U.S. Code § 186 to divulge information relating to a patent that's under a secrecy order.
Also, as an interesting gun-related aside, I seem to recall reading in a gun book from ~1981 (IIRC) that the CZ 75 had been covered by a secret patent, but American and Western European courts in the Cold War era had held that secret patents from Warsaw Pact countries were legally invalid, so Tanfoglio was able to copy with pistol with impunity.
However—at least to me—this raises the question of why the ITAR restriction would be even necessary given that it's already a crime under 35 U.S. Code § 186 to divulge information relating to a patent that's under a secrecy order.
Also, as an interesting gun-related aside, I seem to recall reading in a gun book from ~1981 (IIRC) that the CZ 75 had been covered by a secret patent, but American and Western European courts in the Cold War era had held that secret patents from Warsaw Pact countries were legally invalid, so Tanfoglio was able to copy with pistol with impunity.
This sounds like they are trying to prevent the 'home grown' terrorist from either selling the information or using it themselves to harm America. And or prevent the terrorist ease droppers on the internet getting a hold of anything related to firearms.
They don't trust us and we sure as hell don't trust them. Next move will be to throw it under the Patriot Act. I hope I don't get a knock on the door because I posted pictures of my firearms.
The terrorist are kicking our collective a--'s.
Where bankrupt, we have no jobs, our infrastructure is crumbling all around us and we don't even trust our dog anymore. But no doubt some will hype the threat even more to keep us in line.
I sure pity the kids coming up in today's America. We not only don't know what we look like anymore, we don't even know what we stand for anymore.
They don't trust us and we sure as hell don't trust them. Next move will be to throw it under the Patriot Act. I hope I don't get a knock on the door because I posted pictures of my firearms.
The terrorist are kicking our collective a--'s.
Where bankrupt, we have no jobs, our infrastructure is crumbling all around us and we don't even trust our dog anymore. But no doubt some will hype the threat even more to keep us in line.
I sure pity the kids coming up in today's America. We not only don't know what we look like anymore, we don't even know what we stand for anymore.
Here's a link to the Federal Register that explains what ITAR covers, if anybody's interested. Definitely not the Readers Digest version!!. Start at bottom right Pg. 31525.
Link:http://www.gpo.gov/fdsys/pkg/FR-2015-06-03/pdf/2015-12844.pdf
Link:http://www.gpo.gov/fdsys/pkg/FR-2015-06-03/pdf/2015-12844.pdf
Having been in the ITAR arena for a dozen years, it is a ball of snakes:
> One of the most significant issues for ITAR compliance is what is
> sometimes referred to as a “deemed export”, i.e. an export taking
> place by the transfer not of a tangible article but of information.
> The ITAR restricts this by defining “export” as ...disclosing (including
> oral or visual) or transferring in the U.S. any defense article to an
> embassy, any agency or subdivision of a foreign government; disclosing
> (oral or visual) or transferring tech data to a foreign person, whether in
> the U.S. or abroad; and performing a defense service on behalf of, or for
> the benefit of, a foreign person, whether in the U.S. or abroad. Thus,
> merely showing or describing controlled technology to a foreign national
> will be an export under the ITAR. The Department of State takes these
> “deemed exports” very seriously and there have been some high-profile
> prosecutions of academic personnel in recent years for sharing
>information with foreign students without proper authorization from DDTC.
http://www.barnesrichardson.com/?t=5&LPA=1457&format=xml&p=3718
Watch this very, very... very carefully as the definitions are set up under the "new interpretaion."
Misunderstanding or not knowing is not a defense. Examples will be made.
> One of the most significant issues for ITAR compliance is what is
> sometimes referred to as a “deemed export”, i.e. an export taking
> place by the transfer not of a tangible article but of information.
> The ITAR restricts this by defining “export” as ...disclosing (including
> oral or visual) or transferring in the U.S. any defense article to an
> embassy, any agency or subdivision of a foreign government; disclosing
> (oral or visual) or transferring tech data to a foreign person, whether in
> the U.S. or abroad; and performing a defense service on behalf of, or for
> the benefit of, a foreign person, whether in the U.S. or abroad. Thus,
> merely showing or describing controlled technology to a foreign national
> will be an export under the ITAR. The Department of State takes these
> “deemed exports” very seriously and there have been some high-profile
> prosecutions of academic personnel in recent years for sharing
>information with foreign students without proper authorization from DDTC.
http://www.barnesrichardson.com/?t=5&LPA=1457&format=xml&p=3718
Watch this very, very... very carefully as the definitions are set up under the "new interpretaion."
Misunderstanding or not knowing is not a defense. Examples will be made.
The panic line on the radio today was "new law to forbid gun discussion on the Internet".
And while I can see where some would want this to happen, and also that there are things that should be under govt control, I just don't see small arms as one of them.
I think any attempt to use this that way would run into serious free speech objections.
The exact specs needed for a nuclear bomb would be a good point, but the principles are taught in high school!
Right now, the big risk I see is the anti gun faction pushing personal arms into the "sensitive defense technology" mold, when they are not.
Information is information, and the specs to build an AR lower are the same specs if you do it with a milling machine, or a 3D printer. You cannot say its legal if printed in a book, but not legal as software. Or at least, I don't think you should be able to...
And while I can see where some would want this to happen, and also that there are things that should be under govt control, I just don't see small arms as one of them.
I think any attempt to use this that way would run into serious free speech objections.
The exact specs needed for a nuclear bomb would be a good point, but the principles are taught in high school!
Right now, the big risk I see is the anti gun faction pushing personal arms into the "sensitive defense technology" mold, when they are not.
Information is information, and the specs to build an AR lower are the same specs if you do it with a milling machine, or a 3D printer. You cannot say its legal if printed in a book, but not legal as software. Or at least, I don't think you should be able to...
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
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
Last edited:
Armorer-at-Law
New member
This is my area. When a US patent application is filed, it is reviewed for any national security interests and may become subject to a secrecy order. These are very rare and usually don't relate to small arms, but to things like making an airplane invisible to radar, etc. If it passes review, you are given what is called a "foreign filing license" that allows you to disseminate the contents publicly and internationally.
Keep in mind, however, that most patent applications do not include all of the manufacturing dimensions, tolerances, and other sorts of details that might be covered under ITAR.
If it is subject to a secrecy order, it may never issue as a patent. It is probably the kind of thing that either a) you would never know if it was infringed anyway, or b) that the government is the only customer for it anyway. If it's (b), there are ways that the inventor can be compensated if the government uses the invention.
Excellent explanation.
It must have happened that someone filed a patent for x, but x had already undergone the process you describe, and a prior inventor had been compensated by the government.
Does the second inventor get a "you can't have a patent and we won't pay because someone else already invented this -- trust us" letter?
Does the process you describe encourage an innovator to seek IP protection elsewhere first?
It must have happened that someone filed a patent for x, but x had already undergone the process you describe, and a prior inventor had been compensated by the government.
Does the second inventor get a "you can't have a patent and we won't pay because someone else already invented this -- trust us" letter?
Does the process you describe encourage an innovator to seek IP protection elsewhere first?
I'm astounded this hasn't gotten more attention here. The reloading forum, gunsmithing forum, and about a third of the equipment forum posts contain data that would be subject to the reach of the proposed rule change. Just because 'they won't shut them down' right away, only means they will persist at the pleasure of the Executive branch. I am uneasy at this prospect.
There's a good bit of chaff, but also I hope some good/accurate information on the other forum. I won't abuse all of you by repeating it here. There's also the links to the rule change text and the comment areas set up by the State Department.
The short of it is the feds will claim the authority to restrict from foreigners (i.e. 'the internet') not only physical firearms components as they do currently, but the information needed to obtain, use, or counter those components. Applies to accessories, too, btw. Information currently in the public domain will remain (since it is already released) but new information may or may not be restricted from disclosure per the State Department.
Potential liability will have most sites voluntarily restrict the topics open for discussion, and actual liability will shutter the remaining ones operating openly. The topics will be driven underground (and forgotten as interest wanes).
It seems a large portion of commenters on blogs insist the law does not permit these actions, but I challenge them to form an argument backed by the actual text of the rule change proposal and ITAR opposing my position. I do not see "they can't do that" or "they can't enforce that" as valid positions suggesting we should not oppose this change. I wish greatly to be defeated because I think the rule change has a good chance of going forward. I would also appreciate the chance to 'spar' with a rational opposition to identify weak spots or outright holes in my argument. Also to determine the best routes for objecting to what I can only interpret as an unprecedentedly massive expansion of federal authority over speech.
TCB
There's a good bit of chaff, but also I hope some good/accurate information on the other forum. I won't abuse all of you by repeating it here. There's also the links to the rule change text and the comment areas set up by the State Department.
The short of it is the feds will claim the authority to restrict from foreigners (i.e. 'the internet') not only physical firearms components as they do currently, but the information needed to obtain, use, or counter those components. Applies to accessories, too, btw. Information currently in the public domain will remain (since it is already released) but new information may or may not be restricted from disclosure per the State Department.
Potential liability will have most sites voluntarily restrict the topics open for discussion, and actual liability will shutter the remaining ones operating openly. The topics will be driven underground (and forgotten as interest wanes).
It seems a large portion of commenters on blogs insist the law does not permit these actions, but I challenge them to form an argument backed by the actual text of the rule change proposal and ITAR opposing my position. I do not see "they can't do that" or "they can't enforce that" as valid positions suggesting we should not oppose this change. I wish greatly to be defeated because I think the rule change has a good chance of going forward. I would also appreciate the chance to 'spar' with a rational opposition to identify weak spots or outright holes in my argument. Also to determine the best routes for objecting to what I can only interpret as an unprecedentedly massive expansion of federal authority over speech.
TCB
I suppose we'd better be finding out just what kind of firearms information/data ISN"T in the public domain. And what, if any kind of appeals process there is.
No doubt some would like to ban all firearms discussion, but there is so MUCH that is in the public domain I have to wonder just what the bureaucrats might consider classifiable.
Would it, for instance, be permissible to discuss Lugers, but not the latest GLock variant?
And, goodness, what about ...gasp..BOOKS???
"I suppose we'd better be finding out just what kind of firearms information/data ISN"T in the public domain. And what, if any kind of appeals process there is."
Ask Cody Wilson (seriously; he actually posted a pretty well thought out summary and interpretation of this proposal, as well as the heat he's been under via ITAR since his uploading the Liberator 3D printed pistol to the net). He's not even allowed to host a forum for customers troubleshooting his CNC Ghost Gunner milling machine, btw. Obviously the goal is to expand this kind of restriction more broadly to the forum world at large, having found it to be effective at stifling that particular irritant.
"Would it, for instance, be permissible to discuss Lugers, but not the latest GLock variant?"
A US made Luger reproduction could certainly be classified as a Defense Article if they wished. Also, any new load data you come up with to optimize accuracy, as well as tactical drills & results (Forgotten Weapons) could potentially be covered. Hell, tactical shooting competitions themselves could possibly be ensared in this mess.
If you were to publish (or self publish) a book about the design features of the Remington R51 2.0, for instance, it would first be subject to State Department review (much like the various Bin Laden Raid books) before it could be published. At best they wouldn't care, but would waste a lot of your time and money in the process. At worst, they would deem the modernized Pedersen Action a sensitive defense article and prohibit you from discussing technical details or publishing photos informative of its design or function.
Oh yeah; you'd also have to be north of 2000$ annually --for starters-- for the pleasure of registering to be reviewed (or avoid doing so at your legal peril, depending on what you publish)
Most likely it would first extend to things like machine guns, machine gun conversions, and silencers. Then it would extend to original home build or small business designs. Eventually less and less new information regarding firearms innovations would be generated, and enthusiasm for a staid hobby would wane.
Think about how many forums prohibit the discussion of machine gun conversions, or full auto trigger systems, or the internals of silencers. Think about how little technical information there is available on the HK MP7 (it's covered by Germany's equivalent, which I believe explains why there is so little detailed information or photos of its internal parts and construction)
Another hypothetical; I own a KPV parts kit (14.5mmx114mm Soviet heavy machine gun). At some point in the future, I plan on obtaining a destructive device tax stamp so that I may convert the crew-served belt-fed machine gun parts, into a fully-legal semi-auto 'anti-materiel' type rifle of ridiculous proportions. Would my build journal facilitate foriegners to turn field guns largely mounted uselessly on vulnerable pickup trucks in the mid east, into accurized long-range platforms capable of defeating most armored vehicles (BMG rated) within a mile or so? Would that qualify as technical data required for the manufacture, service, or use of a designated "defense article" worth restricting to keep out of the enemy's hands? What would a rubber-stamp court judge with anti-gun leanings think?
Will I be able to share my progress and seek input online? Will I have to keep all my notes under 'lock and key' and disclose them to no one but ITAR registrees? Will I have to shell out +$2000 in ITAR fees even to begin design & construction? If any of these are changed from the current rules by the new rule change, will the build be worth the trouble?
TCB
Ask Cody Wilson (seriously; he actually posted a pretty well thought out summary and interpretation of this proposal, as well as the heat he's been under via ITAR since his uploading the Liberator 3D printed pistol to the net). He's not even allowed to host a forum for customers troubleshooting his CNC Ghost Gunner milling machine, btw. Obviously the goal is to expand this kind of restriction more broadly to the forum world at large, having found it to be effective at stifling that particular irritant.
"Would it, for instance, be permissible to discuss Lugers, but not the latest GLock variant?"
A US made Luger reproduction could certainly be classified as a Defense Article if they wished. Also, any new load data you come up with to optimize accuracy, as well as tactical drills & results (Forgotten Weapons) could potentially be covered. Hell, tactical shooting competitions themselves could possibly be ensared in this mess.
If you were to publish (or self publish) a book about the design features of the Remington R51 2.0, for instance, it would first be subject to State Department review (much like the various Bin Laden Raid books) before it could be published. At best they wouldn't care, but would waste a lot of your time and money in the process. At worst, they would deem the modernized Pedersen Action a sensitive defense article and prohibit you from discussing technical details or publishing photos informative of its design or function.
Oh yeah; you'd also have to be north of 2000$ annually --for starters-- for the pleasure of registering to be reviewed (or avoid doing so at your legal peril, depending on what you publish)
Most likely it would first extend to things like machine guns, machine gun conversions, and silencers. Then it would extend to original home build or small business designs. Eventually less and less new information regarding firearms innovations would be generated, and enthusiasm for a staid hobby would wane.
Think about how many forums prohibit the discussion of machine gun conversions, or full auto trigger systems, or the internals of silencers. Think about how little technical information there is available on the HK MP7 (it's covered by Germany's equivalent, which I believe explains why there is so little detailed information or photos of its internal parts and construction)
Another hypothetical; I own a KPV parts kit (14.5mmx114mm Soviet heavy machine gun). At some point in the future, I plan on obtaining a destructive device tax stamp so that I may convert the crew-served belt-fed machine gun parts, into a fully-legal semi-auto 'anti-materiel' type rifle of ridiculous proportions. Would my build journal facilitate foriegners to turn field guns largely mounted uselessly on vulnerable pickup trucks in the mid east, into accurized long-range platforms capable of defeating most armored vehicles (BMG rated) within a mile or so? Would that qualify as technical data required for the manufacture, service, or use of a designated "defense article" worth restricting to keep out of the enemy's hands? What would a rubber-stamp court judge with anti-gun leanings think?
Will I be able to share my progress and seek input online? Will I have to keep all my notes under 'lock and key' and disclose them to no one but ITAR registrees? Will I have to shell out +$2000 in ITAR fees even to begin design & construction? If any of these are changed from the current rules by the new rule change, will the build be worth the trouble?
TCB
Armorer-at-Law
New member
No. If a US citizen inventor applies for a patent in another country before having a "foreign filing license" and then files for a US patent, the US patent may be invalid. There is a process for getting an expedited foreign filing license, even if you haven't filed a US patent yet, if you have need to file foreign first. That's rarely needed. If you file a patent application in the US, you can then file an application in virtually any civilized country in the world within one year and it will be treated as if it were filed on your US filing date.
I wonder how things like Black powder (obsolete since the late 18th century) & "Foreign" C&R will play into this?
They're seriously trying to say discussing a British product invented in the 1890's & discontinued in the 1950's after being obsolete since the First World War is covered?
If it gets through I foresee a lot of "specialty forums" opening up.
They're seriously trying to say discussing a British product invented in the 1890's & discontinued in the 1950's after being obsolete since the First World War is covered?
If it gets through I foresee a lot of "specialty forums" opening up.
How do civilian firearms become "defense items", aside from the stroke of a bureaucrat's pen?
I can easily understand the reasoning behind the original laws, to prevent sensitive information from easily reaching the enemy in time of war, such as the convoy sailing date, and #/type of ships, or the specs on the engine used in a fighter plane, etc.
But how do small arms enter into this, PARTICULARLY small arms that our military DOES NOT USE??????
A little while after the 9/11 attack, I watched a major US network show us ALL where to put explosives on the Golden Gate Bridge. Complete with CGI and arrows to the spots!
I see this as another thinly veiled attempt to demonize gun enthusiasts, in order to further restrict them. If you want to ban FREE SPEECH because it gives "aid and comfort to the enemy", then you better have concrete proof, otherwise you are just a tyrant.
The enemy does NOT follow our rules and laws. That's one of the reasons we call them the enemy.
Our gov today, supported by a large, and largely ignorant segment of our population is "ban happy". Things are banned because someone misuses them, or because someone COULD misuse them.
A while back, in my state, some kids got really sick, at least one died, because at a party, the abused an energy drink. Never mind the fact that they deliberately overdosed on the drink, mixed it with alcohol (and were underage to legally drink alcohol), the gov response to this "problem" was to ban the energy drink.
You (and I) "cannot be allowed" to have this, or that, because someone, somewhere hurt or killed someone or themselves with it. And, heaven forbid you be allowed to talk about that on the Internet, it might get to the enemy!
Fascists who claim noble and good intentions are still Fascists!
I can easily understand the reasoning behind the original laws, to prevent sensitive information from easily reaching the enemy in time of war, such as the convoy sailing date, and #/type of ships, or the specs on the engine used in a fighter plane, etc.
But how do small arms enter into this, PARTICULARLY small arms that our military DOES NOT USE??????
A little while after the 9/11 attack, I watched a major US network show us ALL where to put explosives on the Golden Gate Bridge. Complete with CGI and arrows to the spots!
I see this as another thinly veiled attempt to demonize gun enthusiasts, in order to further restrict them. If you want to ban FREE SPEECH because it gives "aid and comfort to the enemy", then you better have concrete proof, otherwise you are just a tyrant.
The enemy does NOT follow our rules and laws. That's one of the reasons we call them the enemy.
Our gov today, supported by a large, and largely ignorant segment of our population is "ban happy". Things are banned because someone misuses them, or because someone COULD misuse them.
A while back, in my state, some kids got really sick, at least one died, because at a party, the abused an energy drink. Never mind the fact that they deliberately overdosed on the drink, mixed it with alcohol (and were underage to legally drink alcohol), the gov response to this "problem" was to ban the energy drink.
You (and I) "cannot be allowed" to have this, or that, because someone, somewhere hurt or killed someone or themselves with it. And, heaven forbid you be allowed to talk about that on the Internet, it might get to the enemy!
Fascists who claim noble and good intentions are still Fascists!