17 March 1998
Source: http://zen.pratt.edu/info/pub/itar/simms_robinson.memo

--------------------------------------------------------------------------

						U.S. Department of Justice
						Office of Legal Counsel

Office of the					Washington, DC 20530
Deputy Assistant Attorney General

						   [stamped  JUL 5- 1984]


		MEMORANDUM FOR DAVIS R. ROBINSON
			LEGAL ADVISER [sic]
		     DEPARTMENT OF STATE


      Re:  Revised Proposed International Traffic in
           Arms Regulations (ITAR)


This responds to a memorandum of June 5, 1984, from Mr.
Cummings of your Office, requesting the views of this Office on a
proposed revision of the International Traffic in Arms Regulations
(ITAR), recently prepared by the Department of State (hereinafter
"current draft"). This Office has previously provided extensive
comments on an earlier proposed revision of the ITAR (hereinafter
"prior draft"). [n.1] See Memorandum for William B. Robinson, Office
of Munitions Control, Department of State, from Theodore B. Olson,
Assistant Attorney General, Office of Legal Counsel (July 1, 1981)
(hereinafter "1981 ITAR



==========
[n.1] This Office first addressed constitutional issues related to the
ITAR in 1978 in a memorandum for Dr. Frank Press, the Science
Adviser to President Carter. That opinion considered the
constitutionality of the restrictions on the dissemination of
cryptographic information developed by scientists and
mathematicians in the private sector independent of government
supervision or support. We concluded that the ITAR's prohibition of
disclosure of these "public" cryptographic ideas and information
amounted to an unconstitutional prior restraint. See Memorandum
for Dr. Frank Press, Science Adviser to the President, from John M.
Harmon, Assistant Attorney General, Office of Legal Counsel (May 11,
1978) (attached).
==========

Memorandum"). [n.2] For reasons set forth in detail below, we
believe that the current draft is an improvement over the prior
draft, but that the application of the ITAR to a significant class of
conduct continues to raise serious constitutional questions, which
should be resolved prior to promulgation of the revised ITAR.


I.  BACKGROUND

In our 1981 memorandum, we discussed primarily the restrictions
on, and the exemptions allowed for, the "export" of "technical data."
Under the ITAR, the "export" of "technical data" is subject to a
licensing requirement unless it falls within one of the exemptions.
We concluded that the prior draft of the ITAR had a number of
unconstitutional applications, specifically with regard to transactions
in which an exporter, unconnected with any foreign enterprise,
disseminated technical data knowing or having reason to know that
the data may be taken abroad and used there in the manufacture or
use of arms. We noted that the coverage of the technical data
provisions was so broad that they

could be applied in a number of factual settings to persons who are
not directly connected or concerned in any way with any foreign
conduct carrying dangerous potential for the United States. They
could be applied, for example, to communications of unclassified
information by a technical

==========
[n.2] In 1981, we also issued an opinion which addressed the
constitutionality of proposed regulations under the Export
Administration Act (EAA) regarding the export of technical data
relating to items on the Department of Commerce's Commodities
Control List. These regulations proposed generally the same
definitions, prohibitions, and licensing requirements with respect to
technical data associated with commodities as the ITAR proposed for
technical data associated with munitions. We concluded that the
proposed EAA regulations also amounted to an unconstitutional prior
restraint on the disclosure of a wide variety of protected speech. See
Memorandum for Henry D. Mitman, Director, Capital Goods
Production Materials Divisions, Department of Commerce, from
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel
(July 28, 1981) (attached).
==========



lecturer at a university or to the conversation of a United States
engineer who meets with foreign friends at home to discuss matters
of theoretical interest.

1981 ITAR Memorandum at 13.

Relying on the decision in United States v. Edler Industries, Inc., 579
F.2d 516 (9th Cir. 1978), we concluded in 1981 that the technical
data provisions could be constitutionally applied to persons or firms
who assisted foreign enterprises in the development of sensitive
technological capacities. We also concluded, however, that in the
absence of special circumstances, such as a grave and immediate
threat to national security, the difference between direct and
immediate involvement in potentially dangerous conduct, such as in
the Edler case, and the speech of a lecturer or engineer in the
hypothetical posed above, could be critical for constitutional
purposes. Thus, the technical data provisions could not
constitutionally be applied to the dissemination of technical data by
persons having no direct connection with foreign conduct in settings
in which there is no more than a belief or a reasonable basis for
believing: (1) that a foreign national may take technical data abroad;
and (2) that the data could be used by someone there in the
manufacture or use of items on the controlled munitions list. In the
absence of special circumstances that would justify a prior restraint
on such speech, the speech was presumptively protected and
therefore could not constitutionally be subjected to a licensing
requirement.

The 1981 ITAR Memorandum did not purport to determine the
constitutionality of all possible applications of the ITAR. We merely
advised that there were a number of unconstitutional applications
which would make the regulations overbroad. We suggested that the
regulations be narrowed to make it less likely that they would apply,
or might be thought by a court to apply, to protected speech.


II . SUBSEQUENT LEGAL DEVELOPMENTS

Since we wrote our 1981 ITAR Memorandum, the Supreme Court has
decided two commercial speech cases. In both cases, the Court has
continued the extent of protection of commercial speech recognize-1
in the earlier cases, upon which our previous memorandum relied.
The details of the two more recent cases are not relevant to our
analysis here, but it is important to note that, in our judgment, the
constitutional principles upon which we relied remain intact. [n.3]


III.  DISCUSSION

The current draft of the ITAR circulated by your Office was
apparently intended to remedy the constitutional defects


=========
[n.3] In Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) (plurality
opinion), the Court considered a city ordinance which permitted
onsite commercial advertising but prohibited offsite commercial
advertising and noncommercial advertising with limited exceptions.
The plurality opinion concluded that the ordinance was constitutional
as applied to commercial speech because it satisfied the standards of
Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447
U.S. 557 (1981), upon which we relied in our prior opinion. The
substantial government interests in improved traffic safety and
appearance of the city were directly served by the ordinance, which
was no broader than necessary to accomplish those ends. (The ban
was invalidated as applied to noncommercial speech, however,
because the Government's asserted interests were insufficient to
justify the ban, given that commercial advertising was permitted.) In
Bolger v. Younas Drug Products Corp., 103 S. Ct. 2875 (1983), the
Court struck down a federal statute which prohibited unsolicited
mailing of contraceptive advertisements. The Court held that the
statute was an unconstitutional restriction on commercial speech
because the Government's interests in shielding recipients from
unwanted mail which they might find offensive and aiding parents in
controlling the information which their children received about birth
control were insufficient to overcome the protection afforded to
speech that was truthful and related to activity protected from
unwanted state interference and also to important social issues. City
of Los Angeles v. Taxpayers for Vincent, No. 82-975, 52 U.S.L.R. 4594
(U.S. May 15, 1984), is a sort of sequel to Metromedia, although it is
not a commercial speech case. In Taxpayers, the Court upheld a city
ordinance which prohibited the posting of signs on public property.
The Court held that the content-neutral prohibition was justified by
the city's substantial esthetic interests, even as applied to signs
which carried political messages. Of course, the ordinance was
directed against--and prohibited --only the use of the signs. Speech
itself was not regulated and could be continued to be conveyed on
public property by a speaker or distributor of leaflets.
===========


existing in the prior draft. The summary of the current draft notes
that the list of exemptions from the licensing requirement of the
ITAR was one of the provisions which received the most comments
and that concerns were expressed about the relationship between
that licensing requirement and the First Amendment. The summary
states that the revision "seeks to reflect these concerns, and certain
new exemptions are provided." Prior draft at p. 10. We have
examined the new exemptions as well as the revised definitions of
"export" and "technical data," and we offer the following comments.
For convenience, the relevant provisions of the prior and current
drafts are set out in full as an appendix to this opinion.

A.  "EXPORT"

The definition of export with regard to technical data has been
changed. [n.4] The prior draft described four general ways in which
technical data could be exported:

(l) sending, transmitting, or taking defense articles and defense
services, including technical data, out of the United States in any
manner, see � 121.34(a)(1);

(2) the disclosure to a foreign national of technical data relating to
significant military equipment in the United States; see � 121.34(b),
first sentence [n.5]:



==========
[n.4] The definitions of export in the current draft with regard to
"defense articles" and "defense services" seem to be substantively
unchanged from the prior draft, at least for purposes of
constitutional evaluation. These provisions were not within the scope
of our 1981 ITAR Memorandum, and they are not relevant here.

[n.5] This sentence describes a narrower category than category (4),
see p. 6, infra, because it applies only to technical data relating to
significant military equipment, not all technical data, but this
category is also broader than category (4) because, as applied to
technical data relating to significant military equipment, this
provision does not require that the transferor know or have reason
to know that the technical data will be disclosed outside the United
States.
===========


(3) the disclosure of technical data to a foreign national abroad, see
id., second sentence [n.6]; and

(4) the disclosure of technical data to a foreign national in the United
States when the transferor knows or has reason to know that the
disclosed technical data will be disclosed outside the United States,
see id., third sentence. [n.7]

Travel abroad by a U.S. national or permanent resident with personal
knowledge of technical data was excluded from the definition of
export. see id., fourth sentence.

Under the current draft, these four categories appear to be
consolidated into two:

(1) sending or taking technical data outside the United States in any
manner except for travel by a person with personal knowledge of
technical data, see � 121.20(c); and

(2) disclosing or transferring technical data to a foreign person,
whether in the United States or abroad, unless an exemption is
applicable. See � 121.20(d).

It appears to us that the first category of export under both the prior
and current drafts is substantively identical, although in slightly
different form. Under the prior draft, travel abroad was also
exempted, although the exemption was contained in the subsection
relating to disclosure and did not specifically refer to sending or
taking technical data out of the United States.

The difference between the two drafts is that the second, third, and
fourth categories of exports in the prior draft have


==========
[n.6] As drafted, the first sentence of � 121.34(b) referred also to
disclosures of technical data relating to significant military
equipment abroad. Given that this second sentence refers to
disclosure of any technical data abroad, the reference in the first
sentence to disclosure abroad of technical data relating to significant
military equipment seems superfluous.

[n.7] This provision seems duplicative of � 121.34(a)(2), which refers
to the transfer of technical data to a foreign national in the United
States in circumstances in which the transferor knows or has reason
to know that the technical data will be sent, transmitted, or taken out
of the United States.
==========



been condensed into the second category in the current draft. On its
face, and without regard to the exemptions, the scope of coverage of
the current draft is broader because it applies to all disclosures and
transfers of technical data to a foreign person in the United States
and abroad, unless exempted, whereas the prior draft seemed to
require that the transferor know or have reason to know that
technical data other than that relating to significant military
equipment would be disclosed outside the United States. Thus,
whether the coverage of the current draft is narrower for
constitutional purposes than the prior draft depends on the scope of
the exemptions provided in the current draft. We examine those
exemptions in detail below, although we will discuss the definition of
"technical data" first in order to complete the background for our
inquiry.

B.  "TECHNICAL DATA"

Both the prior and the current drafts describe generally three types
of technical data. Two are substantially identical:

(1) classified information relating to defense articles and defense
services, see S 121.315(b) (prior draft) and � 121.30(a) (current
draft); and

(2) information covered by a patent secrecy order, see � 121.315(c)
(prior draft), or an invention secrecy order, see � 121.30(b) (current
draft).

The third category is described in the prior draft as "unclassified
information not in the public domain relating directly to" various
categories of information. See � 121.315(a). The current draft is
phrased in terms of "information which is not classified pursuant to
U.S. laws and regulations and which is directly related to" generally
the same kinds of information. See � 121.30(c). Essentially, this
information relates to the "(design, engineering, development,
production, processing, manufacture, operation, overhaul, repairs,
maintenance, or reconstruction of defense articles." The current draft
specifically includes "information which advances the state of the art
of articles on the U.S. Munitions List." See � 121.10(c). [n.8]


=========
[n.8] The prior draft differs by referring to information which is
related to "training" in the operation, use, overhaul, repair, or
maintenance of an article. This difference does not appear to be a
substantive change. The prior draft also included "performance of a
defense service" within the definition of technical data. Performance
of a defense service is now specifically covered in C 121.18.
=========

Two changes have been made in the definition of technical data in
the current draft, which specifically excludes information in the
"public domain" and "general mathematical and engineering
information which is only and [sic] indirectly useful in the defense
field." Information in the public domain is defined to include
information which is published and generally accessible or available
to the public at newsstands and bookstores, through certain
subscriptions, through certain mailing privileges, and at public
libraries. In the prior draft, these same types of information were
exempt by general exemptions from the licensing requirement,
rather than through exclusions from the definition of technical data.
See � 125.11(a)(1) and (10). Thus, although the definitions of
technical data in the prior and current drafts differ because of the
exclusion in the current draft of information in the public domain
and general mathematical or engineering information, we do not
believe that this difference amounts to a substantive change in the
coverage of the regulations. If the scope of the application of the
licensing scheme under the current draft is narrower, it would be
only if the scope of the exemptions were broader. We turn therefore
to an examination of the exemptions.

C. EXEMPTIONS

The prior draft contained ten exemptions. The current draft contains
thirteen. Of the ten exemptions provided in the prior draft, the first
related to technical data which was published or otherwise generally
available to the public. The last related to "information which was
not designed or intended to be used, or which could not reasonably
be expected to be used, in direct application in the design,
production, [etc.], of defense articles (for example, general
mathematical, engineering, or statistical information not purporting
to have or not reasonably expected to he given direct application to
defense articles)." As noted above, these categories of information
are generally covered in the current draft by exclusions from the
definition of technical data. Thus, there are eight exemptions
contained in the prior draft which must be compared to the current
draft, and four additional exemptions provided in the current draft
to examine.

Six of the exemptions appear to be substantively identical to, if not
verbatim repetitions from, the prior draft. These provisions are
identified in the footnote below and are not relevant to our
discussion. [n.9] The two remaining exceptions contained in the prior
draft have been narrowed in the current


===========
[n.9]

Category of Exemption     	Prior Draft	 	Current Draft
Export in furtherance		s. 125.11(a)(3)		s. 125.4(b)(2)
    of a manufacturing
    license or technical
    assistance agreement
    approved by the
    Department of State.

Export in furtherance		s. 125.11(a)(4)		s. 125.4(b)(3)
   of a contract between
   the exporter and the
   U.S. Government which
   provides for the
   export of certain
   technical data.

Export of manuals		s. 125.11(a)(5)		s. 125.4(b)(5)
    and aids relating to
    lawfully exported
    articles to the same
    recipient.

Export of additional		s. 125.11(a)(6)		s. 125.4(b)(4)
   copies or certain
   revised copies of
   technical data previously
   exported or authorized
   to be exported to the same
   recipient.

Export of data			s. 125.11(a)(7)		s. 125.4(b)(6)
   relating to firearms
   and ammunition not
   in excess of .50
   caliber.

Export of data directly		s. 125.11(a)(9)		s. 125.4(b)(8)
   relating to classified
   information previously
   exported to the same
   recipient.
=========

draft. The revision does not appear to raise any constitutional issues.
[n.10]

The current draft contains five new exemptions. (For convenience,
we will refer to these five exemptions by the subsection number of s.
125.4(b) of the current draft.) Two of the exemptions, subsections (1)
and (11), do not alleviate the effect of the licensing requirement as a
prior restraint on the export of technical data as defined in the
regulations. Subsection (1) exempts information which relates to
defense articles but does not qualify as technical data pursuant to
the definition in s. 121.30. Because we are concerned in this
memorandum only with information which is defined as technical
data and subject to export restrictions because of that definition,
subsection (1), although useful for purposes of clarity,


==========
[n.10] The prior draft contained an exemption, s. 125.11(a)(2), for
information approved for public release by any U.S. Government
department or agency having authority to classify information and
material which did not disclose details relating to articles on the
munitions list. The corresponding provision in the current draft, s.
125.4(b)(13), exempts information approved for public release by
the federal department or agency which originated or developed the
information. We understand that the purpose of this change was to
make clear that only the department or agency which generated the
information could confer the exemption for export by prior approval
of the information for public release. This change was designed to
prevent a situation in which the action by one agency of releasing to
the public information of another agency, even if not authorized to
do so, would have the consequence of not only putting that
information into the public domain but also triggering the exemption
and thereby allowing export of that information without a license.
We must caution, however, that we are not sure that this revision
will have the intended effect. If the information is publicly released
by any agency of the Government, we do not know how that
information could be "recaptured" by the Government. Once the
information is in the public domain, we cannot conceive of
circumstances in which its export could be constitutionally restricted.

The second change relates to technical data which is being returned
to the original source of import. In the prior draft, the exemption
applied to all technical data. See S 125.11(a)(8). The current draft is
limited to information which is not classified technical data. See s.
125.4(b)(7). We understand that the purpose of this change is to
withdraw the exemption allowed under the prior version for the
export of classified information without a license.
==========

does not affect our consideration of the scope of the prohibition of
the export of technical data without a license or without an
exemption from the licensing requirement.

Subsection (11) exempts the export of technical data pursuant to an
arrangement with the Department of Defense or NASA which
requires such exports if the exporter has been granted an exemption
in writing from the licensing provisions by the Office of Munitions
Control. In our view, the requirement of obtaining an exemption in
writing is no different for purposes of First Amendment analysis
from the requirement of obtaining the license itself. Both operate as
a prior restraint, and both can be subject to the discretion of the
executive officer from whom each must be sought. [n.11] We do not
believe, therefore, that this exemption significantly affects the scope
of the licensing requirement under the ITAR.

Two of the new exemptions do provide greater freedom from prior
restraint on the export of technical data, although they apply only in
narrow factual circumstances. Subsection (9) exempts an export by a
U.S. corporation to a U.S. person employed by that corporation
overseas, subject to two conditions: that the information must be
used solely by U.S. persons and the U.S. person must be directly
employed by the U.S. corporation and not by a foreign subsidiary.
The exemption is further subject to the limitations found in s.
125.1(b) of the current draft, which precludes use of the license for
export of technical data for foreign production purposes or technical
assistance unless approved in advance by the Department of State.

Subsection (12) exempts any exports specifically exempted under
Part 126 of the subchapter of the ITAR, which includes shipments by
or for federal agencies, certain exemptions for unclassified technical
data exported to and for use in Canada, and certain exports under the
foreign military sales program. With the exception of the exemption
for exports to Canada, these exemptions do not significantly narrow
the scope of the licensing requirement as applied to private persons.

By expanding the exemptions to the licensing requirement, these two
exemptions, subsections (9) and (12), do improve the constitutional
status of the ITAR, which, as our prior


==========
[n.11] We understand from Mr. Cummings that this written consent
may actually take the form of a license or, for reasons relating to
customs or possibly other laws, it may take the form of a letter
granting consent.
==========


opinion concluded, suffered from overbreadth because of the number
of unconstitutional applications which we believed the ITAR to have.
To the extent that the exemptions are expanded, the overbreadth is
reduced. Our concern, however, is that neither of these exemptions
addresses the specific examples of unconstitutional prior restraint
identified in our prior opinion, that is, "communications of
unclassified information by a technical lecturer at a university or to
the conversation of a United States engineer who meets with foreign
friends at home to discuss matters of theoretical interest." See 1981
ITAR Memorandum at 13.

The remaining exemption, subsection (10), appears to be an effort to
address these types of situations, although this exemption is also
insufficient to eliminate the licensing requirement in the two specific
factual settings posed in the hypothetical above, as well as other
situations which may be easily suggested. Subsection (10) exempts
disclosure of unclassified information by U.S. corporations or
academic institutions to foreign persons who are their bona fide and
full time regular employees [n.12] if an employee's permanent abode
is in the United States; an employee is not a national of a country to
which exports are specifically prohibited by the ITAR [n.13]; and the
corporation or institution informs that employee in writing that the
technical data may not be transferred to other foreign persons
without the written


==========
[n.12] As we understand from Mr. Cummings, this exemption was
intended to be exercised by the employment office of the corporation
or the university, which would have the responsibility for informing
its employees of the extent of their rights to disclosure to other
employees without the prior written consent of the Office of
Munitions Control.

[n.13] Pursuant to S 126.1 of the current draft, these countries are:
Albania, Bulgaria, Cuba, Czechoslovakia, East Germany, Estonia,
Hungary, Kampuchea, Latvia, Lithuania, North Korea, Outer Mongolia,
Poland, Rumania, the Soviet Union, Vietnam, and any other country
or area with respect to which the United States maintains an arms
embargo or "whenever an export would not otherwise be in
furtherance of world peace and the security and foreign policy of the
United States." We assume that these other countries are publicly
announced, from time to time, according to some objective criteria, so
that their identity and the basis for the prohibition of exports to that
country may be known to potential exporters.
===========

consent of the Office of Munitions Control. Under this subsection, an
exemption would be provided for full time, regular employees of a
single corporation or university to discuss technical data among
themselves. What is not exempt, however, without the prior written
consent of the Office of Munitions Control, is a disclosure of the
information by an employee of a corporation or university to a
foreign national who is a part-time or temporary employee of that
corporation or university; a full time employee of another
corporation or university; another professional person attending a
conference or a seminar at the corporation or university; a student;
or a friend.

We recognize the attempt made to address the concerns raised in our
prior opinion, and, as we stated with regard to the new exemptions
provided in subsections (9) and (12), to the extent that subsection
(10) constricts the area of application of the licensing requirement,
the additional exemption reduces the area of potential
unconstitutional application of that requirement. We have identified,
however, a number of circumstances in which the prior written
consent of the Office of Munitions Control would be required for
disclosure of the technical data. As noted above, with regard to
subsection (11), which requires the written consent of that Office for
export of certain technical data pursuant to an arrangement with the
Department of Defense or NASA, we do not believe that there is a
constitutionally significant distinction between the requirement of
obtaining-prior written consent and obtaining a license. See note 11,
supra. In some of these circumstances, as well as others, we believe
that the ITAR may still be read to operate as a prior restraint on the
speech of "persons having no direct connection with foreign conduct
in settings in which there is no more than belief or a reasonable basis
for believing (1) that a foreign national may take the technical data
abroad and (2) that the data could be used by someone there in the
manufacture or use of items on the Munitions List." 1981 ITAR
Memorandum at 14. As we concluded in that memorandum, "[in the
absence of special circumstances that would justify prior restraint,
such speech is arguably protected and, as a general rule, cannot be
subjected constitutionally to the . . . licensing requirement." Id.

We are aware of the case law interpreting 22 U.S.C. S 2778, the
statutory authority for the ITAR, which requires a specific intent
willfully to export particular goods on the Munitions List without a
license. See, e.g., United States v. Hernandez, 662 F.2d 289, 292 (5th
Cir. 1981) ("statute's requirement of willfulness connote[s] a
voluntary and intentional violation
of a known legal duty," that is, "that the defendant knew that he was
unlawfully exporting weapons on the Munitions List"); United States
v. Beck, 615 F.2d 441, 449-50 (7th Cir. 1980) (conviction requires
"proof that the defendants (1) exported or attempted to export (2)
goods on the United States Munitions List (3) without first having
obtained a license for the export (4) willfully"); and United States v.
Wieschenberq, 604 F.2d 326, 331 (5th Cir. 1979) (to sustain a
conviction for conspiracy to violate the statute, "government must
prove that the defendants agreed to and specifically intended to
export without a license particular property that is restricted by the
Munitions List"), It may be that the standard of knowledge and
intent that is imposed by these cases with regard to the export of
defense articles might, as applied to technical data, be sufficient to
broaden, in effect, the scope of the exemption under subsection (10)
to the extent consistent with the constitutional standard articulated
in our previous memorandum and reaffirmed here.

We remain of the opinion, however, that on their face, the ITAR still
present some areas of potentially unconstitutional application, and,
moreover, that we cannot be certain whether existing case law would
be sufficient to narrow the range of application to a constitutionally
sufficient extent. In any event, as we advised in our 1981
Memorandum with regard to the overbreadth present in the prior
draft, we believe that "the best legal solution . . . is for the
Department of State, not the courts, to narrow the regulations. See
1981 ITAR Memorandum at l5.


I V . CONCLUSION

We have carefully examined the definitions of "export" and of
"technical data," as well as the exemptions provided from the
licensing requirement, under the current draft of the ITAR, and we
believe that the scope of the exemptions is broader, and the coverage
of the licensing requirement therefore narrower, in at least three
specific areas of importance to private persons: exports by
disclosures to certain employees of U.S. corporations overseas
(subsection (9)); certain exports to Canada (subsection (12)); and
exports by disclosure of technical data by U.S. corporations and
academic institutions to foreign nationals who are their full time,
regular employees, subject to certain conditions (subsection (10)).
Notwithstanding these additional exemptions, however, we have
identified certain areas which still appear to us to
present sensitive constitutional issues. As we previously
recommended, this remaining overbreadth should be eliminated by
more narrowly drafted regulations.


				[signed Larry L. Simms]
                        	Larry L. Simms
                         	Deputy Assistant Attorney General
                         	Office of Legal Counsel


Attachments:

   Appendix of regulations
   Memorandum of May 11, l978, for Dr. Frank Press
   Memorandum of July 28, 1981, for Henry D. Mitman


=======================

			APPENDIX

Prior Draft, 45 Fed  Reg. 83970 (December 19, 1980)

S 121.34 -- Export

(a) Export of defense articles and defenses services [sic] (including
technical data) means:

(1) Sending, transmitting or taking defense articles and defense
services out of the United States in any manner;

(2) Transferring them to a foreign national in the United States in
circumstances in which the transferor knows or has reason to know
that the transferred article or technical data will he sent, transmitted
or taken out of the United States in any manner, or

(3) Transfer to a foreign person of title, registration, or control of:

(i) an aircraft or vessel of war, wherever located, or

(ii) A satellite launched into space from the United States.

(b) The disclosure to a foreign national of technical data relating to
significant military equipment, whether in the United States or
abroad, constitutes an export. The disclosure of technical data to a
foreign national abroad constitutes an export. Disclosure of a [sic]
technical data to a foreign national in the United States constitutes an
export when the transferor knows or has reason to know that the
disclosed technical data will be disclosed outside the United States.
Travel abroad by a United States national or permanent resident
whose personal knowledge includes technical data does not
constitute an export.


S. 121.315 -- Technical Data

"Technical data" means:

(a) Unclassified information not in the public domain relating directly
to:

(1) The design, production, manufacture, processing, engineering,
development, operation, or reconstruction of an article; or

(2) Training in the operation, use, overhaul, repair or maintenance of
an article; or

(3) The performance of a defense service (see S 121.32);

(b) Classified information relating to defense articles or defense
services; and

(c) Information covered by a patent secrecy order.

S. 125.11 -- General Exemptions

(a) Except as provided in S 126.1 of this subchapter, district directors
of customs and postal authorities may permit the export without a
license of unclassified technical data under the following
circumstances.

(l) If the technical data are published or otherwise generally
available to the public:

(i) Through sales at newsstands and bookstores;

(ii) Through subscription, unrestricted purchase, or without cost;

(iii) Through second class mailing privileges granted by the U.S.
Government; or,

(iv) Are freely available at public libraries; or

  (2) If it has been approved for public
release by any U.S. Government department
or agency having authority to classify
information or material under Executive
Order 12065, and other applicable
Executive Orders, and does not disclose
the details of design, production, or
manufacture of any arms, ammunition, or
implements of war on the U.S. Munitions
List; or

(3) If an export is in furtherance of a manufacturing license or
technical assistance agreement approved by the Department of State
in accordance with Part 124 of this subchapter; or

(4) If the export is in furtherance of a contract between the exporter
and an agency of the U.S. Government, and the contract provides for
the export of relevant unclassified technical data, and such data does
not disclose the details of design, production, or manufacture of any
defense article; or

(5) If they consist of operations, maintenance, and training manuals,
and aids relating to an article lawfully exported or authorized for
export to the same recipient. This exemption applies only to export
by the original Munitions Control licensee. It is not applicable to
technical data relating to Category VI(e) and Category XVI; or

(6) If they consist of additional copies of technical data previously
exported or authorized for export to the same recipient. Revised
copies of such technical data are also exempt if they pertain to the
identical defense article and the revisions are solely editorial and do
not add to the content of technology previously exported to the same
recipient; or

(7) If it related [sic] to firearms not in excess of caliber .50 and
ammunition for such weapons, except technical data containing
advanced designs, processes, and manufacturing techniques; or

(8) If they consist solely of technical data being returned to the
original source of import; or

 (9) If they are directly related to classified information which has
been previously exported in accordance with this subchapter to the
same recipient, and which does not disclose the details of a defense
service or the design, production, or manufacture of any defense
article.

(10) If the technical data (within the meaning of sec 121.314) [sic]
consists of information which is not designed or intended to be used,
or which could not reasonably be expected to be used, in direct
application in the design, production, manufacture, repair, overhaul,
processing, engineering, development, operation, maintenance, or
reconstruction of defense articles (for example, general
mathematical, engineering, or statistical information not purporting
to have or not reasonably expected to be given direct application to
defense articles). An advisory opinion may be sought in case of doubt
as to whether technical data is exempt under this category.

Current Draft

S 121.20 -- Export

"Export" means, for purposes of this subchapter:

(a) sending or taking defense articles out of the United States in any
manner; or

(b) transferring registration or control to a foreign person of any
aircraft, vessel, or satellite on the United States Munitions List,
whether in the United States or abroad; or

(c) sending or taking technical data outside of the United States in
any manner except by mere travel outside of the United States by a
person whose personal knowledge includes technical data; or

(d) disclosing or transferring technical data to a foreign person,
whether in the United States or abroad, unless an exemption under
this subchapter is applicable; or

(e) the performance of a defense service on behalf of, or for the
benefit of, a foreign person, whether in the United States or abroad.

121.30 -- Technical Data

"Technical data" means, for purposes of this subchapter:

(a) classified information relating to defense articles and defense
services;

(b) information covered by an invention secrecy order;

(c) information which is not classified pursuant to U.S. laws and
regulations and which is directly related to the design, engineering,
development, production, processing, manufacture, operation,
overhaul, repair, maintenance, or reconstruction of defense articles.
This includes information which advances the state of the art of
articles on the U.S. Munitions List.

Information which is in the "public domain" is not considered to he
technical data subject to the controls of this subchapter. General
mathematical and engineering information which is only and
indirectly useful in the defense field is not included in this
definition.
For purposes of this subchapter, "public domain" means information
which is published and which is generally accessible or available to
the public:

(1) through sales at newsstands and bookstores;

(2) through subscriptions which are otherwise available without
restriction to any individual who desires to purchase the published
information;

(3) through second class mailing privileges granted by the U.S.
Government; or,

(4) at libraries open to the public.

S 125.4 -- Exemptions of General Applicability

                *          *            *

(b) The following exports are exempt from the licensing
requirements of the subchapter:

(1) If the information to be exported relates to defense articles but
does not qualify as technical data pursuant to s. 121.30; or

(2) If an export is in furtherance of a manufacturing license or other
agreement approved by the Department of State under Part 124 of
this subchapter and is consistent with the requirements of s. 124.3;
or

(3) If the export is in furtherance of a contract between the exporter
and an agency of the U.S. Government, and the contract provides for
the export of the relevant unclassified technical data, and such data
does not disclose the details of design, production, or manufacture of
any defense article; or

(4) If the export consists of additional copies of technical data
previously exported or authorized for export to the same recipient.
Revised copies of such technical data are also exempt if they pertain
to the identical defense article and the revisions are solely editorial
and do not add to the content of technology previously exported to
the same recipient; or

(5) If the export consists of operations, maintenance, and training
manuals, and other written aids relating to an article lawfully
exported or authorized for export to the same recipient. This
exemption applies only to export by the original licensee. It is not
applicable to technical data relating to Category VI(e), VIII(b) and
(g) and Category XVI; or

(6) If the information to be exported is related to firearms not in
excess of caliber .50 and ammunition for such weapons, except
detailed design, development, or production information; or

(7) If the information is not classified and its export consists solely
of technical data being returned to the original source of import; or

(8) If the export is directly related to classified information which
has been previously exported in accordance with this Part to the
same recipient, and which does not disclose the details of a defense
service or the design, production, or manufacture of any defense
article; or

(9) If the export is by a U.S. corporation to a U.S. person employed by
that corporation overseas. This exemption is subject to the limitations
of S 125.1(b) and may be used only if (a) the information is to be
used overseas solely by U.S. persons and (b) if the U.S. person is
directly employed by the U.S. corporation and not by a foreign
subsidiary; or

(10) If the information is not classified, it may be disclosed in the
United States by U.S. corporations or U.S. academic institutions to
foreign persons who are their bona fide and full time regular
employees. This exemption is available only if (a) the employee's
permanent abode throughout the period of employment is in the
United States; and (b) the employee is not a national of a country to
which exports are prohibited pursuant to S 126.1; and (c) the
corporation or institution informs the individual in writing that the
technical data may not be transferred to other foreign persons
without the written consent of the Office of Munitions Control; or

(11) If the exports of technical data are pursuant to an arrangement
with the Department of Defense or NASA which requires such exports,
and the exporter has been granted an exemption in writing from the
licensing provisions of this Part by the Office of Munitions Control.
Such an exemption will normally be granted only if the arrangement
directly implements an international agreement to which the United
States is a party and if multiple exports are contemplated. The Office
of Munitions Control, in consultation with the relevant U.S.
Government agencies, will determine whether the interests of the
United States Government are best served by expediting exports
under an arrangement through an exemption. (See also paragraph
(b)(3) of this section for a related exemption.); or

(12) Any export which is specifically exempt under Part 126 of this
subchapter.

(13) If the information to be exported has been approved for public
release (i.e., unlimited distribution) by the U.S. Government
department or agency which was originated or developed the
information. This exemption may not be used if the information
discloses the details of design, development, production, or
manufacture of any defense articles. This exemption is applicable to
information approved by the cognizant U.S. Government department
or agency for public release in any form (e.g., publications, speeches,
conference papers, movies, etc.). It does not require that the
information be published in order to qualify for the exemption.
