As discussed here in a previous post, the proposed definition of “public domain” by the Directorate of Defense Trade Controls (“DDTC”) has a Catch-22. Information that is in the “public domain,” i.e. information that has been published on the Internet or made available in a public library, is exempted from the definition of technical data in the ITAR and can be freely exported without license. Then there is the Catch-22, which is more like a Catch-22,000,000: except when the information has been released without the prior approval of DDTC or three other enumerated government agencies.

The idea that technical data (like, say, a picture of a B-52 bomber or a video explaining the bullet manufacturing process) is not public domain until the government explicitly authorizes its release has been, needless to say, a disturbing notion to many. DDTC tried to tamp down the outrage by saying this in connection with the proposed rule:

The requirements of paragraph (b) are not new. Rather, they are a more explicit statement of the ITAR’s requirement that one must seek and receive a license or other authorization from the Department or other cognizant U.S. government authority to release ITAR controlled ‘‘technical data,’’ as defined in § 120.10.

So they say now, but DDTC had something very different to say about the definition of “public domain” in United States v. Bernstein. That case dates back to 1996 when encryption items were on the USML. An encryption developer brought suit against DDTC (then ODTC) and the State Department claiming that export controls on encryption products violated his First Amendment rights by foreclosing him from discussing in public the technical aspects of his encryption software.

Nonsense, DDTC replied. To begin with, there were many exceptions, like the public domain exception, which permitted plaintiff Bernstein and others like him to chat away to their heart’s content. Problem is Bernstein called up Charles Ray at DDTC and posed a hypothetical of putting materials containing technical data in a public library without government approval. Ray told him that could be an export violation. So Bernstein argued to the court that the public domain exception was not a significant exception because technical data could never be in the public domain unless the Government approved the release

Here’s where it gets really good. DDTC, in a pleading filed with the court, called that an “unreasonable” interpretation of the public domain exception:

Plaintiff’s attack on the “public domain” exemption is also meritless. That provision contains several specific exceptions as to what is controlled as technical that any ordinary person can understand — information in bookstores, newsstands, or disclosed at conferences. Plaintiff sees a “Catch-22” “lurking” in the provision that, unless something is already published, it is subject to export controls. He would construe the definition to mean, in other words, that nothing can be published without the government’s approval. Not only is this wrong as a factual matter, […] it is by far the most un-reasonable interpretation of the provision, one that people of ordinary intelligence are least likely to assume is the case.

Oops.

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