Mar
27
Prosecution Run A-Mak
Posted by Clif Burns at 7:38 pm on March 27, 2007
Category: Arms Export • Criminal Penalties • DDTC
Yesterday we commented on the argument by the prosecutors in the Mak trial that export of public domain technical data to an embargoed country, such as China, violates the Arms Export Control Act. Josh Gerstein, the intrepid New York Sun reporter covering the case, read our post and sent a copy of the government’s brief in which it makes that claim.
The prosecution’s argument couldn’t be simpler and couldn’t be more wrong. The brief filed by the prosecution cites the portion of section 127.1 of the ITAR which states that the “exemptions” provided in the ITAR don’t apply to exports to embargoed countries:
These regulations make plain that the exemption in ITAR, including the public domain exception, do not apply to exports to the PRC because the PRC is subject to an arms embargo.
This argument thoroughly confounds exemptions — which exempt exports of defense articles and defense services from licensing requirements — and regulations which define the scope of the terms “defense article,” “defense service,” and “technical data.”
The reference to “exemption” in section 127.1 is clearly a reference to the various portions of the ITAR which are explicitly referred to as “exemptions” — such as the “Exemptions of General Applicability” for exports of defense articles provided in section 123.16, “Exemptions for training and military service” provided in section 124.2, the “Exemptions of General Applicability” for exports of technical data provided in section 125.4, and the “Exemptions for Plant Visits” provided in section 125.5.
“Exemption” does not refer to the provisions of section 120.10(a)(5) which state that the “definition” of technical data does not include:
information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
The government’s claim that this is an “exemption” not only contradicts the plain meaning of the regulations but leads to results that could not possibly be intended by anyone. Under the government’s claim that section 120.10(a)(5) is an exemption, hundreds of universities with Chinese graduate students are in peril of criminal prosecution for providing to them “general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities.”
The prosecution in the Mak case attempts to support its position by relying on the Ninth Circuit’s decision in U.S. v. Posey, 864 F.2d 1487 (9th Cir. 1989). This is odd, to say the least, because the trial court in that case dismissed charges under the Arms Export Control Act for export of technical data on the grounds that the technical data was in the public domain. The Ninth Circuit did hold that public domain data was restricted for export under a different statute — the Comprehensive Anti-Apartheid Act (“CAAA”), which is no longer in force — because that Act explicitly limited exceptions to those contained in the CAAA itself and the CAAA did not contain a public domain exception.
When the export community learns about the government’s argument in this case, I suspect there will be an uproar.
Permalink
Copyright © 2007 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)
36 Comments:
Dr. Burns. Thanks for posting the DoJ brief. It helped me answer the question “what are those three documents anyways?”
It turns out two of them are IEEE confernce material readily available to it’s memebership worldwide, including Chinese nationals associated with the Chinese military.
The other one is a RFP for power generation component of the DDX program. I assume this is the document Power Paragan, as a military contractor, would received and clear (since the RFP is a public request.)
Dr. Burns, I have a hypothetical question, and would like to find out if I can get you involved: What would happen if I posted location of those documents on your blog?
Since your blog may be subscribed or replicated by Chinese nationals (and they all work for the Chinese military) therefor I have exported these publically available documents in violation?
What if I referenced these documents on your blog in another public forum where Chinese nationals frequent(again they all work for the Chinese military), will it substantiate an intention to render defense services to the Chinese government?
Would you, as owner of you blog, be responsible for allowing me to “outting” these publicly available documents?
Mr. Liu — thanks for your comments and thoughts on this matter. I have to say that since I am not certain myself that these documents are public domain, I would edit out any link to those documents in my comments. And even if I were certain they were PD, I would still delete the links. Lawyers in compliance mode avoid doing things that might arguably legal to avoid all possible risk. Lawyers in defense mode on the other hand insist that the government prove that something is illegal.
Certainly in your hypothetical, and should I have permitted such links, the Government might indeed argue that I had committed an export violation. I don’t believe that it is a violation under the proper reading of the rules, but I have a duty to my clients (and to my blog readers) not to become distracted in such a dispute even if I would ultimately win!
The government’s citation of Karn without citing the contrary authority in the 6th Circuits decision in Junger v. Daley raises some ethical questions.
Okay Dr. Burns. I won’t get you involved. Matter of fact after your response I’m not sure if I should put my life in danger (Mak was held without bail like Dr. Wen Ho Lee) and render my family needless suffering.
I found the IEEE docuemnts mentioned in the DoJ breif by “Googling” the titles. Anyone wish to see them can find them.
For example, one of them talks about efficiency and quietness of electric motors, and such technology is in hybrid cars like the Toyota Prius.
[…] UPDATE: Josh Gerstein read this post and then kindly sent me a copy of the prosecutors’ brief on the public domain issue. Their argument is even worse than I imagined. I’ll post it, along with my comments, later today. SECOND UPDATE: My comments on the prosecution’s brief on the public domain issue are here. Permalink 8 Comments […]
Where can I find your comments referenced in the second update?
This post itself is what I was referring to as my comments in the second update of the prior post. Sorry if that wasn’t clear.
Dr. Burns. I’m wonder what these reference in the DoJ means:
125.4(b)(13)(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
125.4(b)(13)(3) Through second class mailing privileges granted by the U.S. government;
Based on my research, the documents Mr. Khersonsky and Mr. Mak presented at conferences can be purchased on-line without restriction. Membership to the sponsoring organzization (IEEE.org, navalengineers.org) both have membership open to the public.
The second part I am a little fuzzy on. Let’s say, hypothetically, I pay for a IEEE subscripton, order the documents, and asked IEEE to mail them to me via 2nd class mail – would that contradict the prosecution’s assertion 125.4.(b)(13) doesn’t apply?
Or the “authority” language means something beyond the US Postal Service?
Thanks!
The basic premise that someone could publish or present ITAR-controlled technical data to the ITAR-defined “Public domain” (See 22 CFR 120.11) to make use of an exception or exemption is reprehensible. Following this hypothetical plan of action to its inevitable conclusion means that one could distribute blueprints and diagrams of the most sensitive US Government defense technologies as fliers at a trade show in the US solely to make use of the exception for public domain information carved from the ITAR definition of “Technical data” at 22 CFR 120.10(a)(5). Got a proposal due to the New Zealand Defence Force and doesn’t look like that DSP-05 is going to be approved in time to meet your deadline? No problem! Run off 500 copies and distribute them at the trade show tomorrow in Dayton, Ohio. Clearly, this was not an intended use of the “Public domain” exception.
Rather, formal review and approval procedures have been established through which individuals and industry must vet materials prior to release to the public domain (because the public includes some members which are not US Persons). Did Mr. Mak vet his papers through the appropriate and available channels prior to presenting them at the conferences? If he had done so, he would have in his possession a letter from DOD’s OSR or “the cognizant U.S. Government department or agency or Directorate for Freedom of Information and Security Review [sic]” (22 CFR 125.4(b)(13)) evidencing formal review of and approval for releasing the papers at issue to the ITAR-defined “Public domain.”
It simply does not make sense that one could violate the provisions of the ITAR in releasing ITAR-controlled technical data at a conference or trade show to an audience including foreign national attendees and then simply turn around the next day and claim use of the exception found at 22 CFR 120.10(a)(5).
Moreover, US Government documents released to the public domain are always marked as such. This includes RFPs. The formal procedure for ensuring unmarked documents have, in fact, been released to the public domain is to either secure from the cognizant US Government agency or office something in writing evidencing that the unmarked document has been released to the public domain or filing a FOIA request. Via either FOIA request or OSR review and approval, the document will be returned with all controlled information redacted.
The horse and cart are clearly established in this arena: first you get your approvals, then you release the documents – not the other way around. You can’t back into an approval, exemption, or exception via the unapproved release of documentation and data to a public forum.
We all have to play by the same rules here folks. I am more than a little dismayed to see in this string of comments so much support for individuals who chose to act outside the established parameters. Actions like those of Mr. Mak deserve to be condemned and punished.
Surely Mr. Lancaster’s comment was an April Fool’s joke.
Incidentally, in response to a question at Update, BIS has taken the possible that making data publicly available does make it no longer subject to the EAR. Given the DoJ’s argument that ITAR and EAR are similarly structured, this undercuts their argument — unless BIS backtracks of course.
It would appear to be an April Fools, since Mr. Lancaster has neglected even the most fundamental values such as “innocent until proven guilty”.
I for one sincerely wish no one would be subjected to “condemnation and punishment” without a fair trial untainted by prosecutorial misconduct and government abuse.
Mr. Lancaster, unfortunately nothing in the language of the rules supports your interpretation.
Even if it did, there’s nothing in the record to suggest that the disclosure of these papers at the ASNE conference was a ruse designed by Mr. Mak to take advantage of the PD exception and to avoid licensing requirements. In both instances, Mr. Mak’s employer approved the presentation of the papers to the conference.
Mr. Burns, it is a simple matter of statutory construction:
The ITAR definition of Export includes “Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad…” (22 CFR 120.17(a)(4)).
As such, disclosing technical data to an audience which is comprised of, in part, foreign nationals constitutes an export for which a license or other authorization must first be obtained.
The public domain is comprised, in part, of foreign nationals.
22 CFR 125.4(b)(13) specifically lays out one avenue via which a person can obtain export authorization for release of technical data to the public domain. Futher evidence that one may not release technical data to the public domain without a proper authorization.
BIS will tell you (if you ask) that the EAR’s “Publicly available information” is readily distinguishable from the ITAR’s “Public domain.” BIS liberally allows industry to post its proprietary infromation to the public domain. However, there is no easy out to the ITAR’s jurisdiction – nor should there be. The ITAR governs munitions, including special instruments and vehicles of war (like stealth bombers and aircraft carriers), chemical and biological weapons technologies, rocket launchers and incendiary devices, and technical data (technology and information) related thereto. This is why the courts decline to second-guess the judgment of those whose profession it is to designate United States Munitions List defense articles unless it is absolutely clear that such designation has been executed arbitrarily or capriciously (no court has ever found a USML designation to have been executed arbitrarily or capriciuously). Any second-guessing in this arena could end up putting access to some very nasty technology into the hands of some very bad people. Given this climate, why would the ITAR fashion a backdoor exception via release at conferences or trade shows? It is infinitely more likely that the crafters of the ITAR meant to preserve the status of technical data already in the public domain at the time of its enactment.
I digress. In the end the ITAR relies on a very simple equation:
Export + Defense Article + Foreign National – Authorization = Export Violation
Since open trade shows or conference will likley draw at least one foreign national attendee, export of technical data (a defense article per the defintion at 22 CFR 120.6) to a conference or trade show without authorization is a violation of the provisions of the ITAR.
You do not have to take my word for it. Recommend attending Export Compliance Solutions (ECS) Introduction to ITAR Seminar. This course will give good insight into the difference between the EAR’s “Publically available information” and the ITAR’s “Public domain” and the rules and processes governing the release of information to each. I have no affiliation with ECS.
Mr. Lancaster — Section 125.4(b)(3) applies to “exports,” not to disclosures. If you disclose tech. data only to U.S. citizens it is not an export and nothing in the ITAR is implicated by that disclosure. If you disclose it to U.S. citizens without imposing upon them an obligation of confidentiality it becomes public domain. There is no evidence that there were foreign nationals at the ASNE conferences in question, an assumption that seems reasonable from the fact that Mr. Mak is not being prosecuted for presenting the papers to the ASNE.
Mr. Burns – There is a distinguishing factor here worth examining. I agree that if I were at attendance at the ASNE conference in question, I should be entitled to reasonably rely upon the exception at 22 CFR 120.10(a)(5). However, as a presenter at the conference and co-author of the paper presented, it does not make sense that the 22 CFR 120.10(a)(5) exception would apply to Mr. Mak. It was incumbent upon him to secure the recquired authorization prior to disclosing technical data to foreign nationals.
Let me give a for instance:
It has been my experience that DOD’s OSR does not approve for release to the public domain all literature submitted to OSR for review. Sometimes, OSR returns a brief letter that basically says that OSR has reviewed the literature submitted and is denying the request for release of the literature to the public domain for reasons of national security. According to your analysis, I may be able to treat this literature as public domain information if I present it to an open conference without restriction – provided I have the luck to find that no foreign nationals have attended my presentation at the open conference.
Of course, if foreign nationals are in attendance, I have committed an export violation under the ITAR. However, if by chance no foreign nationals attend, my literature has successfully made it to the public domain and I may freely distribute such literature across the globe (bad 5 excepted) regardless of any previous decisions on the matter by either DOD or DOS.
Does that make sense?
Clearly, an attendee at an open conference or trade show should be entitled to reasonably rely on the assumption that distributors of literature and information have vetted all such materials through the appropriate channels to secure an approved release to the public domain. But should a presenter be able to reasonably rely upon the same assumption? No, because it is not an assumption for the presenter. It is a known quantity. In fact, in many instances the only person capable of obtaining the required approvals is the manufacturer or author of the data.
Here, we know that on at least one occassion DDTC has found that Mr. Mak’s papers contain technical data, which is why it would be a tremendously abd idea for you to provide links to this information through your site. Knowledge trumps assumption. Where an individual has a legal duty or obligation, knowledge of that duty or obligation is assumed. Ignorance of the law is no excuse. As such, Mr. Mak knew or should have known that an approval was needed to release techical data to foreign nationals. His papers should have been marked as at least possibly containing technical data – restricting ditribution to US persons only. Failure of Mr. Mak to follow through with his legal obligation may excuse actions of others in distributing or reproducing Mr. Mak’s papers, as they should be able to reasonably rely upon the exception found at 22 CFR 120.10(a)(5), but Mr. Mak’s initial failure to vet or mark his materials prior to distribution should never excuse or except from penalty continuing bad acts along the same vein.
Finally, if Mr. Mak’s employer served as the ultimate approval for dsitribution and presentation of his papers, Mr. Mak would likley fare better claiming reasonable reliance on his employer’s direction than he will with his public domain argument.
1. There is not one shred of evidence, or allegation, that there were foreign nationals at the ASNE conferences. But I repeat myself.
2. Ignorance of the law is an excuse in a criminal prosecution under the AECA where the prosecution must prove that Mak knew he was violating the law. It isn’t an excuse in a civil penalty violation. Nor is it an excuse in posting comments here. 🙂
1. There is not one shred of evidence that there were no foreign nationals at the ASNE conference. DDTC chooses which enforcement actions it wishes to pursue. Moreover, serendipity and circumstance are weak foundations upon which to build black letter law.
2. Law School 101 – One need not have specific knowledge of the law to have the requisite mental state to commit a criminal act –>
A person engages in conduct:
(1) Intentionally, or with intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result.
Mr. Lancaster, before you attempt to conduct a class of Law School 101, you might perhaps crack open a book of case law:
United States v. Beck, 615 F.2d 441, 452 (7th Cir. 1980).
United States v. Tsai, 954 F.2d 155, 162 (3d Cir.), cert. denied, 113 S. Ct. 93 (1992).
United States v. Murphy, 852 F.2d 1, 7 (1st Cir. 1988), cert. denied, 489 U.S. 1022 (1989).
All the above stand for the proposition that the prosecution must show, in order to establish a criminal violation of the AECA, that the defendant knew that the export was in violation of law.
Mr. Burns – You and I know that the prosecution regularly imputes this knowledge to the defendant based on the evidence. It is rare that a “smoking gun” email is discovered saying something to the affect of, “I was reading the ITAR the other day, but chose to ignore it…”
Thus, while the ITAR mental state hurdle appears to be set high for the prosecution, a criminal defendant need not be proven to have read the ITAR to be criminally prosecuted thereunder.
Anywho, I will not be teaching Law School 101 next semester, so that’s besiide the point. What was the point? Ah, yes – it was this:
We should all be very careful in how we go about releasing information at trade shows and conferences.
Nothing more; nothing less.
Mr. Burns,
I can’t believe you made me read case law at 3:30 in the AM. Well, I did. Here’s an excerpt from Murphy:
“The court’s instruction incorporated all the elements of the offense and made clear that conviction would not require evidence that defendants knew of the licensing requirement or were aware of the munitions list. The instruction was as follows:
[a]n act is done willfully if it is committed with the knowledge that it was prohibited by law and with the purpose of disobeying or disregarding the law … Thus, while the government must show that a defendant knew that the exportation of firearms and munitions in this case was illegal, it is not necessary for the government to show that the defendants were aware of or had consulted the United States Munitions List or the licensing and registration provisions of the Arms Export Control Act and its regulations or the National Registration & Transfer Record or the Federal Firearms Law involved in count 2 … [I]gnorance of the law in this respect, in this case, is not an excuse. In this case, what is required is proof that the defendants acted knowingly and willfully with the specific intent to violate the law, and that’s what I said to you.
The jury charge was proper under the statute and case-law…”
You are correct in your assertion that the defendant must have some awareness that the activities in which he engages is in violation of the law. He need not know that such actions are in violation of the ITAR, per se.
As such, I still believe that Mr. Mak’s superior defense is that he reasonably relied upon a decision made by his employer. His employer was likely in a far better position to judge the contents of the papers as such content relates to containing ITAR-defined “Technical data”.
Unfortunately, Mr. Mak will likely ride the “Public domain” nag until its dead. The real issue is not that the ITAR-controlled technical data was in the public domain; rather, that Mr. Mak’s employer advised him as such.
All that said, I just don’t see how it would sit well with anyone that the export of information related to nuclear propulsion systems could not be controlled for export. It simply boggles my mind.
Finally, all that said, you have turned me around on at least one issue: While I still do feel that a civil penalty is in order, it does not sit well with me that anyone could face significant jail time for following the direction of an employer where such direction rests on a matter of interpreting difficult laws. Not following a direct order from your boss to beat the tar out of a rival salesman is one thing; refusing to present a paper as directed is quite another altogether.
I want to emphasize that Matthew’s concerns about arguing that tech data is PD are absolutely correct from a compliance standpoint. Company employees should never claim that something is PD without reviewing that with management and counsel, and everyone should err on the side of caution.
And should public trade shows and conferences start screeening people for their nationality? Profile some folks based on their ethnic origin? Appearances?
Looks like not only is free speech out the door, so is civil rights.
[…] We have criticized before the prosecution’s claim in the Chi Mak prosecution that the public domain exclusion doesn’t apply to exports of technical data to China. The prosecution bases its argument on language in section 126.1(a) of the ITAR that says that “exemptions” can’t be used for exports to embargoed countries. As we have noted, that language clearly refers to parts of the ITAR explicitly denominated as “exemptions” and not to the various definitional exclusions scattered through the ITAR, such as the exclusions of public domain information and basic research principles from the definition of technical data. […]
Mr. Lancaster, in your April 1, 2007 comment you state: “review and approval procedures have been established through which individuals and industry must vet materials prior to release to the public domain.â€
Do you intend to state that you need USG review of information before transmitting it into public domain even if the information was never classified or subject to government contractor agreed restrictions on dissemination?
If the drafters intended that prior USG approval was required for placing all defense information in the public domain, they would have explicitly written that. Why are we so sure? Because at one point the ITAR did just that: it explicitly required prior approval for publishing public information. The drafters explicitly dropped this requirement in 1984, citing First Amendment concerns.
If you’re taking the time to cite case law, please also ensure your basic premises are correct before wasting any more of Mr. Burns’ time.
Mr. Moriarty,
Thank goodness you posted! All this time I’ve been reading the ITAR definition of tech data wihtout your keen insights. Now that I know that, despite what the words say, it’s restrictions only apply to information that is or has been classified or is subject to government-contractor agreed restrictions on dissemination, I’ll never have to work another 8 1/2 hour day again. Thank you! Thank you! Thank you! I simply did not exist until you touched me with your sagacious guidance. Now I bloom like a spring magnolia in the blessed bursting heat of a Louisiana shower. I can not thank you enough. If only Philip Karn had known you as well. You could have done so much to help him, too – and he could have avoided that nasty little lawsuit from the very first instant. Alas! He, too, lived in darkness…
However, I must object to you attempting to put limitations on the time I spend with Mr. Burns. That, sir, is our business – and our business alone.
You’re still reading incorrectly or you’re purposefully twisting my words.
Of course, the ITAR can apply to unclassified information as well as classified information or that subject to contractor agreed restrictions on disclosure. However, if you have unclassified information on a defense article that is not subject to government contractor agreed restrictions on disclosure; there is no pre review requirement before transmitting into public domain. Do you disagree?
Mr. Moriarty,
Does the ITAR restrict export of unclassified technical data to foreign nationals?
Does the ITAR defintion of export include oral and visual disclosures?
Does the public domain include foreign nationals?
If the answer to all three questions is yes, how does one release unclassified technical data to the public domain without fear of penalty?
It seems to me, as the ITAR are written today, that the only way to go about releasing ITAR-controlled technical data to the public domain >>without fear of penalty
Does the public domain include foreign nationals?
My disagreement with this analysis is this: public disclosure to other U.S. citizens can be made legally and it is these legal disclosures that may render the information public domain under the ITAR definition. Thereafter, disclosure to foreign nationals of this public domain material is completely legal.
Mr. Burns,
Given the avenues of release to the public domain listed in the ITAR at 22 CFR 120.11, how does one go about releasing controlled technical data to a U.S.-person-only audience in the first instance? Don’t the available avenues preclude you from being able to limit your potential audience to a specific subset of the general public at the first unveiling?
Mr. Lancaster,
1. The controlled technical data might be fundamental research or general scientific or engineering principles relating to the defense article. It becomes public domain as well when released at a conference.
2. The controlled technical data may become public domain if it is released at such conferences or otherwise published even though that release or publication would itself be a deemed export violation. The regs do not say “lawfully released” or “lawfully published.”
Regarding No. 2 – If there are U.S. persons at a seminar (in the U.S.), they will, at least hypothetically, be receiving the information at the same time as the foreign national sitting beside them. Likewise, if posted on the Internet, the information is publicly available to both U.S. and non-U.S. persons at the same time. Is it a violation of the deemed export rule for FNs to be present at the time controlled data is validly transmitted into the public domain?
Mr. Moriarity — that is an interesting question since the answer depends on when the item becomes public domain during such a disclosure. If its before the FN receives the info, you could say there’s no problem. If it’s afterwards than there was an export violation, and if it was at exactly the same time, its impossible to tell whether it was a violation or not.
Well, IEEE.org is in violation then – since the two articles Chi Mak is accused of releasing continue to be available on their website for foreign nationals to download.
Foreign nationals that are associated with the Chinese military who appearantly spent decades to “mole” Mr. Mak in America to release this information…
Clarles, maybe it’s true.
Tim, I hope you will never be put thru the ringer on a “maybe”.
What happened to innocent until proven guilty?
“It turns out two of them are IEEE confernce material readily available to it’s memebership worldwide, including Chinese nationals associated with the Chinese military.
The other one is a RFP for power generation component of the DDX program. I assume this is the document Power Paragan, as a military contractor, would received and clear (since the RFP is a public request.)â€
I didn’t know what documents are involved in Mak’s case until you posted this message.
If this message is true, then IEEE and all defense institutes who post Request-For-Proposal (RFP) on the web (e.g., DARPA, ONR, ARO, AFRO, DOE, …..) are as guilty as Mak, because they release the same type of information to China military.
I know Mak has one more thing to explain, that is, the encrypted CD, which makes him look suspicious.
But the US government is so desperate that they have to build the case on top of a very controversial charge. If the law is actually a law, not a law against Chinese only, I would like to see all defense institutes send their web administrators to the court, because these administrators have committed export violation crime by posting defense RFP on the web. If this is not happening, then I have to agree to Charles Liu’s point that this is a racial thing. To Tim Tang, you maybe okay, but your sons and your grandsons are still at danger due to the schizophrenic management of law, unless you can change the genes of your descedents.
FYI, although Chinese communists have built the great firewall to block websites from the access of Chinese internet users, I am sure that Chinese Military’s access to the entire Internet is NOT affected by this great firewall. So all the web administrators in those defense institute did successfully violate the export constraints.
