First amendment and ITARs

[hfinney@shell.portal.com]

In U.S. v Posey, 864 F2d 1487, the defendant was convicted of violating
the Comprehensive Anti-Apartheid Act ("CAAA") and the Arms Export Control
Act ("AECA") by sending design documents relating to the C-130 aircraft
to South Africa.  Posey obtained these documents from the U.S. government
via the Freedom of Information Act.  The U.S. government agreed that these
documents were technically public domain within the meaning of the ITAR's.
However, the CAAA, which applies only to exports to South Africa, does
not contain the "public domain" exemption that the AECA (which applies to
exports in general) does.  The recent grand jury action regarding PGP
appears to involve possible violations of the AECA.

Posey appealed on several grounds, one of which was that these Acts
violated his first amendment rights, since the information was, after
all, freely available.  The court rejected this argument, with a lengthy
(and, to my mind, somewhat confused) discussion, which is worth repeating:

  VII. FIRST AMENDMENT

  Appellant's final argument is that the First Amendment bars the
  government from restricting the export of information that is already
  available to the public.  He insists that the data he sent abroad
  was available under the Freedom of Information Act, and therefore
  could be legally obtained by virtually everyone in the world.  He contends
  that the First Amendment prohibits the application of the AECA and
  CAAA to the export of such publicly available information.

  Our Court has already considered and rejected this argument.  In
  United States v. Edler Industries, 579 F2d 516 (9th Cir. 1978), we
  rejected an essentially identical challenge to the predecessor of the
  AECA.  The defendant was convicted of exporting certain manufacturing
  designs that were on the Munitions List but were not classified.  He
  challenged his conviction on First Amendment grounds, arguing that the
  government could not constitutionally prohibit the export of techno-
  logical data that was widely distributed within the United States.  In
  rejecting that claim, we explained that even assuming that the First
  Amendment offers some protection to the dissemination of technical data,
  the government has a strong interest in regulating the export of
  military information:

    The federal government undeniably possesses the power to regulate the
    international arms traffic....  As a necessary incident to the power
    to control arms export, the President is empowered to control the
    flow of information concerning the production and use of arms.  The
    authority to regulate arms traffic would be of negligible practical
    value if it encompassed only the exportation of particular military
    equipment but not the exportation of blueprints specifying the
    construction of the very same equipment.
  
  579 F2d at 520.  We accordingly concluded that the government could
  permissibly restrict the flow abroad of data included in the Munitions
  List.  579 F2d at 521.  Finally, we held that the government's power
  to issue such restrictions was not affected by the domestic availability
  of the regulated data:

    Given the unquestionable legitimacy of the national interest in
    restricting the dissemination of military information, the claim of
    public availability in the United States is not a defense recognized
    by the Constitution.
  
  579 F2d at 522.

  Appellant attempts to distinguish Edler from the present case by pointing
  out that the exported data in Edler was "cutting edge" technology and
  was not widely used in this country.  [Citation].  Whether or
  not this was factually true of the technology at issue in Edler, however,
  the Edler decision clearly assumed for purposes of its decision that
  the material was extensively available in the United States.  See 579
  F2d at 518, 522.

  Moreover, we believe Edler should not be read as permitting the govern-
  ment to restrict the export of only that information which is not
  widely available domestically.  Under appellant's reading of Edler,
  if the government wished to prevent technical data from being sent to
  foreign powers, it would be required to suppress the information alto-
  gether, at home as well as abroad.  This outcome would blur the fact
  that national security concerns may be more sharply implicated by the
  export abroad of military data than by the domestic disclosure of such
  data.  Technical data that is relatively harmless and even socially val-
  uable when available domestically may, when sent abroad, pose unique
  threats to national security.  It would hardly serve First Amendment
  values to compel the government to purge the public libraries of every
  scrap of data whose export abroad it deemed for security reasons
  necessary to prohibit.  We conclude that appellant's conviction does
  not violate the First Amendment.

(Hal speaking again here.)  The thing I find somewhat ironic about this
decision is this last paragraph.  The court is saying that if the First
Amendment implied that domestically available information could be exported,
then the government might have to restrict domestically available
information.  But, this ignores the fact that the AECA already contains
an explicit exemption for public domain information.  So, the court is
going to some length in this last paragraph to consider an argument which
is mooted by the public domain exemption in the AECA.  And in fact, as
we have seen, at least one government official is daring to argue that
this provision of the AECA does in fact give the U.S. government the
power to keep Munitions List information out of public libraries!

In any case, this decision and the earlier one it quotes both represent
rejections by the 9th circuit appellate court (which includes California,
where the grand jury investigations are taking place) of the argument
that the ITARs infringe on First Amendment rights.  This will make it more
difficult to use the First Amendment defense in any new charges of arms
export violations.

Hal Finney
hfinney@shell.portal.com