Department of State Comments on ITAR Rule Changes

The proposed ITAR rule changes impacting free speech aren’t quite getting the media coverage we need to get the word out to our people, and this has me concerned. This article that appears in Defense Trade Law seems to agree with our interpretation that the proposed rule change is very broad. I’ve seen a few different opinions on this topic in the comment section over at The Firearm Blog’s post on the topic (in addition to a few trolls). The State Department had a press conference last week where the topic of their proposed ITAR regulations came up.


QUESTION: Did you get an answer the question I asked yesterday about these ITAR – revisions to the International Trafficking in Arms Regulations?

MR RATHKE: I did. I’m happy to go through that, if that would be helpful. You asked yesterday, Matt, about a June 3rd publication in the Federal Register by the State Department of proposed changes for public comment to several regulatory definitions under the International Traffic in Arms Regulations. These proposed changes in definition are part of our broader effort to streamline and modernize a Cold War-era regulatory system to better safeguard against illicit attempts to procure sensitive U.S. defense technologies.

These proposed definition changes – which, as I pointed out, are out for public comment – they seek to account for technologies that were not envisioned when the regulations were initially developed. Otherwise these definitions are intended to be a clarification of existing law and regulations, technical data, and detailed schematics that are required for the manufacture or production of defense articles already require U.S. Government authorization before they can be disseminated by U.S. manufacturers.

Now in contrast, general descriptions, public discussions, and imagery of defense articles, including firearms, have never been the subject of – to these regulations and they would remain unaffected under these proposed revisions. As I said at the start, they were published in the Federal Register for public comment. That’s a period that runs through August 3rd of this year. So I’d refer people to the text of the Federal Register notice for details about providing —

QUESTION: Okay. So these rules would not apply to private citizens, only to manufacturers – and only to highly sensitive technical details? Is that —

MR RATHKE: They apply to the technical data and detailed schematics for the production of defense articles.

QUESTION: So they don’t apply to private citizens.

MR RATHKE: Well, they apply to anything that relates to those areas of subject matter, whether discussed by —

QUESTION: Okay. Well, the concern that had been raised by the Second Amendment groups is somehow this is going to restrict or stop or ban discussions about gun – about firearms —

MR RATHKE: Well, I go back to the – also the point that general descriptions – that is general, not technical and detailed ones – general descriptions or public discussions and imagery of defense articles would – have never been subject to these regulations and wouldn’t —

QUESTION: So the concern that has been expressed is misplaced, yes?

MR RATHKE: Yes, that would be our view.

Okay, anything further? Thank you.

QUESTION: Thank you.

None of us ever thought just a picture of a gun or “general descriptions or public discussions and imagery of defense articles” was going to get us in hot water. The issue is a lot more complicated than that. It’s become pretty apparent to me on reading and re-reading this proposed rule change, and the existing ITAR rules, that this is targeted squarely at 3D printing, CNC milling, and Cody Wilson more specifically.

Notice when asked whether it would apply to the public at large, he basically concedes the issue. The big problem is that previously, we were all protected by the public domain exception to the rule. I’d encourage everyone to follow that link, and note subsection (b) which is reserved. This public domain exception is obviously dated in the Internet age, but it’s pretty apparent if one publishes the information through “unlimited distribution” that material is the public domain. Now, for the reserved subsection (b) The new proposal spells out what is to be done with it:

(b) Technical data or software, whether or not developed with government funding, is not in the public domain 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 with authority to allow the technical data or software to be made available to the public.

By my reading, if you shared a straight-up CAD drawing of an AR-15 or 1911, you’d be fine because those designs are already in the public domain. However, if you developed your own wildcat load for a cartridge, or you came up with a novel design for a rifle, pistol, shotgun, scope or accessory, or you created a modification to an existing design, you’d have to seek clearance from the State Department prior to publishing it. It’s going to be exceedingly difficult for people who aren’t lawyers to understand the difference. My opinion is that this rule is meant to stifle people’s ability to discuss gun making with 3D printers or CNC milling machine’s online, due to the legal complexities and risks involved in doing so. Despite the fact that we shared no CAD drawing or plans in our experimentation with this technology on this blog, I still do not know whether my posts on the subject would fall under ITAR pre-clearance or not, and I’m a good bit more legal savvy than most hobbyists.

17 thoughts on “Department of State Comments on ITAR Rule Changes”

  1. My opinion is that this rule is meant to stifle people’s ability to discuss gun making with 3D printers or CNC milling machine’s online

    My guess is that it’s more about preventing distribution of the source files that contain the code telling the printer or CNC mill what to do. Sure, you can buy all the 3D printers you want, but you won’t be able to download files to print things that shoot anymore. If it takes, it’s an effective way to kill 3D printed guns just as they’re getting interesting.

    Apparently, the Founding Fathers would have been very concerned about this sort of thing. /sarc

    1. It’s not clear at all where they are going to draw the line. The files that tell the printer or mill what to do is usually done in the G Programming Language. There’s other 3D modeling formats, like DXF that you can generate a gcode file from. Is GCode restricted? Or is the 3D model from which you can make GCode restricted?

      1. I’m also concerned about the IT component of this regulation. It would seem the common pentesting tools are going to now be classified as weapons that would need state dept approval being being uploaded anywhere.

      2. I was about to ask the same thing about asking if anyone has a sample letter. I agree this hasn’t gotten enough attention. To apply ITAR rules ambiguously to firearm enthusiasts opens the door to a world of problems for the industry.

        Even on defense contracts where the end product is explicitly ITAR, ITAR regularly requires ongoing professional analysis and interpretation. Most commonly, a determination needs to be made regarding what parts and sub-assemblies will be considered ITAR and which won’t. For example, does a basic 6061 aluminum bracket which goes into an ITAR assembly need to be treated as ITAR? Sometimes cautious contracting departments will ask that everything in an assembly be classified as ITAR. That means that all of the drawings need ITAR warnings, files need special management software and procedures, emails need encryption, ordinary vendors need to certify that they have ITAR procedures in place, documentation control systems, that no foreign persons will have access to the data, etc.. Some suppliers wind up putting in a physical wall between two parts of their business, followed by badges and separate IT infrastructure, because it’s the easiest path. ITAR classification causes additional delays and cost up and down the supply chain–suddenly $25,000 toilet seats don’t seem so expensive. So, if “firearm data” is to be ITAR, what level of assembly would it apply to? Would discussing the hardness of a sear be ITAR? Would the dimensions of the takedown pins be ITAR? What about optimum barrel twists for a given bullet weight?

        As mentioned in the article, ITAR technical data is already being treated as a proprietary trade or company secret anyway, so the ITAR layer is currently an additional layer of bureaucracy on top of that. Absent an employee willfully violating an employment agreement, very few individuals would share or publish trade data even if it wasn’t ITAR. They’re really talking about potentially reclassifying decades of public domain data. In order for us to have a productive public comment, they need to specify specifically what data will be considered ITAR as Sebastian pointed out.

        Ambiguous wording can create a huge problem down the line when a hostile administration applies ITAR rules to, let’s say, all semi-automatic firearms. Many states like NJ have proven they are more than willing to enforce poorly worded laws in the most draconian interpretation possible. I’m no lawyer but find the 2nd Amendment is pretty clear; however innumerable man-years have been spent arguing that it only applies to militias for example.

        Further challenging the credibility that this “reclassification” is the the intent of ITAR laws themselves. They are meant to keep US military technology, especially that funded by the US government, from falling into the hands of the enemy. The laws are about the technology, not the medium of transmission. As far as I know it’s equally illegal to share ITAR data over the internet as it would be to write it on a napkin and mail it, or share on a boat, on a plane, with a cat… The fact that there’s a new medium of transmission doesn’t have anything to do with the technology itself. Otherwise the first amendment wouldn’t apply to the internet either.

        Also, the technology affected (cartridge projectiles, semi-automatic firearms, bolt action rifles?) is often hundreds of years old. For the most part, firearm development has not been paid for by the government, but was paid for by entrepreneurs and accepted/adapted by the government after trials (Vickers-Maxim/Maxim, Kewish-Garand/M1, Colt-Browning/1911, Armalite-Stoner/AR15, Beretta/M9, etc.), or technology “borrowed” from other non-US countries (Mauser/’06 Springfield). When requesting a CJ for an EAR99, a company has a much harder time justifying non-ITAR status if the DOD paid for all the R&D. If the private sector paid for the development, then it’s private sector technology by default.

        This rule change could be used to justify shutting down gun-related websites/forums, or using the new utility internet reclassification to block certain traffic flows outside the country (ala China). Neither is very appealing.

        Looking forward to seeing what you come up with in your comment letter.

  2. This is a difficult one. Bad combo of outrage fatigue, “won’t affect me” syndrome, and a nasty mix of legal and computer jargon that makes it hard for the average person to get upset about.

  3. I still do not know whether my posts on the subject would fall under ITAR pre-clearance or not,

    Uncertainty, which leads to self-censoring. After all, no sane person wants to be the test case.

  4. Like every other regulation this administration puts forth, it applies to whomever the administration has it in for this week.

    It’s not about you, it’s about traffickers in gun technology. Like you.

  5. Instead of most of us getting into fine details about export regs*, how about we just express outrage that some law passed by Congress, or worse yet some regulation promulgated by some executive branch department, can trump the bloody First f’n Amendment?

    That’s a flag I think we can get more to rally around.

    *Totally fine and more power to you to those who can, but few of us really know the ins and outs at that level of expertise.

    1. Understanding State’s position on what the proposed regulation does is a big part of making sure the First Amendment can trump the regulation in question.

    2. For that matter, where’s the outrage against Legislation Without Representation?

      Why we haven’t yet gotten out pitchforks and tar and feathers for the Congresscritters and the Supreme Court Justices and the Bureaucrats that accept that non-elected officials can create laws (including penalties and civil forfeitures that can benefit said bureaucracies) without accountability to voters, is beyond me.

      No government agency should have the power to create laws from whole cloth, and start enforcing them without an act of Congress, and Presidential signature, period.

      1. The biggest damage ever done to liberty wasn’t the courts allowing a greatly expanded commerce clause. The greatest damage ever done to liberty was the courts weakening the non-delegation doctrine to allow us to be ruled by bureaucrats. Current doctrine doesn’t allow Congress to quite go so far as to say to an agency, “go do good in this area,” but it’s damned close to that.

  6. it is funny how that comment above talks about china. china has no info as to what the world is up to. everything is blocked over there.

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