Apr
12
Mak Prosecutors Come to Their Senses on Public Domain Issues
Posted by Clif Burns at 7:36 pm on April 12, 2007
Category: General
Yesterday the U.S. Attorney’s office prosecuting the export case against Chi Mak came to it’s senses and reversed the position it had taken on exports of public domain data to China. Josh Gerstein has the details in his excellent article in the New York Sun.
As we’ve reported before, the prosecution in the Mak trial tried to claim that the ITAR forbids export of public domain data on military items to China. The prosecution also argued that the State Department “certification” that the documents in question were “technical data” under the ITAR was a conclusive and unreviewable determination that they were not public domain. We explained here, here and here, why these arguments were wrong.
What’s interesting here is that the prosecution changed course apparently as a result of our critical posts on the government’s positions and Josh Gerstein’s excellent reporting on the issues we raised. When we started this blog, our hope was to provide an informative and entertaining take on export law for other professionals in the filed. We didn’t really expect that we would have the impact that we did on a high-profile case.
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Copyright © 2007 Clif Burns. All Rights Reserved.
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2 Comments:
So where does this leave the Chi Mak case?
These two documents (available on IEEE.org) can be argued as PD, and supposedly defense has evidence Mak received release from Power Paragon for the DDX component RFP (aren’t RFPs public requests?)
This isn’t a total win for the defense: Apparently, the prosecution is taking the position that its up to the defense to prove that the information is public domain, which would be consistent with its earlier position that “Public domain” is an exemption, and shifts the burden of proof to the defense just as with an affirmative defense. If treated as jurisdiction, i.e., that DDTC does not have authority to regulate Public Domain, then it would be the prosecutions burden, at least a burden of production (which could then shift the burden to the defense to reut the prosecution), to prove than the information was not public domain and was therefore subject to control. In this case, it sounds like Mak can meet the burden on at least two counts, but that still means that the prosecution gets to present its case in chief without ever having to address the question until the defense presents sufficient evidence to meet its burden. This gives the prosecution the chance to mold the jury’s attitude, and puts the defense in an uphill battle. In theory, instructions from the judge cure this: In reality, it puts a heavy psychological burden upon the defense.
