LETTER TO MARK WEAVER FROM AMERICO R. CINQUEGRANA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05C01629R000701410004-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 25
• Document Creation Date: December 22, 2016
• Document Release Date: September 26, 2011
• Sequence Number: 4
• Publication Date: February 23, 1984
• Content Type: LETTER

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U.S. Department of Justice
Office of Intelligence Policy and Review
Washington, D.C. 20530
February 23, 1984
Mr. Mark Weaver
Symposium Editor
Boston College International and
Comparative Law Review
Boston College School of Law
885 Centre Street
Newton, Massachusetts 02158
Enclosed is a "final" revision of the article I sent you
on January 13 in connection with the FBA/ABA conference on
export controls being organized by Jim Savage. We have inserted
reference material that had been omitted from the earlier draft
and have attempted to make the discussion less ponderous in
various areas.
Please let me know if you have questions or comments.
Very truly yours,
AMERICO R. CINQUEGRANA
Deputy Counsel for Intelligence Policy
Office of Intelligence Policy and Review
cc: Jim Savage
Harvey Sherzer
J. Thomas Rouland
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The Current Legal Basis for Controls on
the "Export" of Technical Information 1/
By
Americo R. Cinquegrana
2/
and
John Michael Shepherd
3/
In the last several years, considerable public and government
attention has been directed to the acquisition of Western strategic
technology by its potential military adversaries, particularly the
Soviet Union. 4/ Confronted by the Eastern bloc's overwhelming
superiority in manpower and sheer volume of weaponry, Western
security is dependent on advanced technology. Congressional
studies and intelligence reports have identified a significant
Soviet effort to satisfy the immediate demands of its military
structure. 5/ As Senator William Roth has declared:
. . . There is no question that the Soviets have
undertaken a massive, well-financed, expertly
1/ The analysis and conclusions included in this article are
those of the authors and do not necessarily represent the official
views of the Department of Justice on these matters.
2/ Deputy Counsel to the Attorney General for Intelligence
Policy, U.S. Department of Justice.
3/ Special Assistant to the Assistant Attorney General,Office
of Legal Policy, U.S. Department of Justice.
4/ See, e.g., Statement of William Van Raab, Commissioner, U.S.
Customs Service Regarding Operation EXODUS, Before the Permanent
Subcommittee on Investigations of the Senate Committee on
Governmental Affairs, Hearings on "Transfer of United States
High Technology to the Soviet Union and Soviet Bloc Nations",
97th Cong., 2d Sess., at 193-216 (May 6, 1982).
5/ See Report of the Senate Committee on Committee on
Governmental Affairs, "Transfer of United States High Technology
to the Soviet Union and Soviet Bloc Nations," 97th Cong., 2d Sess.,
S. Rep. No. 97-664, at 32 (November 15, 1982).
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coordinated program to systematically acquire as
much [of] our high technology as they can steal,
purchase through middlemen or otherwise appro-
priate. And all because they are unable to pro-
duce that technology themselves. So they are
left to copy ours and use it, [not] to make life
more comfortable for their citizens, but to
advance their numerous weapons systems and
overall military capabilities. 6/
The primary emphasis of the Western response to this threat
has been placed on the control of exports of goods. As enforcement
efforts are increased and improved, further study has been given
to the extent to which the acquisition of technical information
contributes to the diminution of the West's technological lead. 7/
Knowledgeable parties have urged that control mechanisms should be
focused on technological "know-how" and manufacturing information,
as opposed to end-products, since the adaptation and application
of such information will have the most enduring impact on military
and industrial capabilities. 8/ Others, while not disagreeing
with that assessment, counsel caution in devising controls on
information which may exceed the scope of the problem and have
the unintended and undesirable effect of constraining scientific
and academic communication and impeding our own technological
advancement. 9/
This article attempts to provide brief, essentially
nontechnical, summaries of the legal mechanisms that provide
6/ Ibid., at 1 (May 4, 1982).
7/ See e.g., Testimony of Adm. Bobby R. Inman, Deputy Director
of Central Intelligence, id. at 235-249 (May 11, 1982); see also
Report of the National Academy of Sciences' Panel on Scientific
Communication and National Security, National Academy Press,
September 1982.
8/ See, e.g., Final Report of the Defense Science Board Task
Force on Export of U.S. Technology, February 1976.
9/ Id.; see also, "Scientific Communication and National
Security", Report of the Panel on Scientific Communication and
National Security of the Committee on Science, Engineering and
Public Policy, National Academy of Sciences (1982); T. Gustafson,
"Selling the Russians The Rope? Soviet Technology Policy and
U.S. Export Controls", Rand Corp. Study for the Defense Advanced
Research Projects Agency, Santa Monica, Calif., April, 1981.
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authority for the United States Government to control the
communication of technical information that may strengthen the
military capabilities of its potential adversaries.
Scope and Definitions 10/
Technical information has been defined in current sources
according to its place on a continuum between mere curiosity and
full-scale production. This presents a fundamental dilemma,
however, since in most cases the basis for controlling the spread
of particular information is not that the information appears in
a particular setting, but rather that the nature of the information
itself and the perceived consequences of its acquisition by other
nations conform to the relevant statutory and regulatory criteria.
Existing laws and regulations provide authority for Government
control of technical information that is under the control of the
government or that is in private hands and has identifiable appli-
cation. These laws and regulations do not provide the Government
with general authority to control privately developed technical
information that appears to have no practical military or
industrial value.
Obviously, given the high rate of technological advancement
in the private sector, technical information of no apparent
practical application today may be the basis for a revolutionary
breakthrough (usually identified as an "emerging technology") in
the near future. 11/ Nonetheless, it would be nearly impossi-
ble, as has been impliedly acknowledged in the current control
structure, to attempt to control all information that has
uncertain, but potential, practical value. Accordingly, this
10/ This article does not address technical information that
may be classified as national security information under
Executive Order 12356, National Security Information, 47 Fed.
Reg. 14874 (April 6, 1982). Rather, it assumes that technical
information produced by or for the U.S. Government that may and
should be classified will be identified and controlled on that
basis. The subject of the article is technical information that
the Government has not classified or that is not in the possession
or control of the United States Government and, therefore, cannot
be classified.
11/ See, Testimony of Lawrence J. Brady, Assistant Secretary of
Commerce for Trade Administration, U.S. Department of Commerce,
Senate Hearings, supra, at 262-77.
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discussion focuses on what we have called "development
information", as differentiated from "research information"
that exists primarily to foster further study.
"Research information" is defined for purposes of this
article as the product of systematic study and experimentation
intended to heighten our understanding of fundamental phenomena.
Such information is not developed for specific commercial or
military uses, but is pursued primarily to increase human
knowledge. The process by which such information is produced
is often referred to as "basic" or "fundamental" research.
"Development information" is defined here as the product of
systematic design, fabrication, or experimental efforts to trans-
late an application concept into specifications, models or
design data necessary for the effective production of a product
or effective use of a process. This category of information is
generically identified as "technical data" in the most important
current control mechanisms. 12/
In addition to defining the basic types of information that
are discussed here, it is necessary also to define several terms
that are used to determine when information that is otherwise
within the scope of the control mechanisms will not be subject
to further controls because of its widespread availability.
Information is "published" when it is made available in
tangible form to any person through purchase, free distribution,
or public libraries. Mere submission to a publisher, editor,
etc., does not, however, constitute publication. 13/
Information is "publicly available" in the context of this
article when it has been published, approved for public release
by the United States Government department or agency that has
responsibility for the information, or disclosed at a conference,
trade show or other meeting that is open to the public. 14/
12/ Export Administration Regulations, 28 C.F.R. 379.1(a);
International Traffic In Arms Regulations, 22 C.F.R. 125.01.
13/ Cf., "Data Generally Available", Export Administration
Regulations, 15 C.F.R. 379.3(a).
14/ Cf., id.; 22 C.F.R. 125.11-.12.
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"Open to the public", as used here, means the event in
question may be attended by technically qualified members of
the public (subject only to administrative considerations such
as space limitations and payment of registration fees) and from
which it is expected that conference proceedings, reports, or the
like will be published in the reasonably foreseeable future. 15/
Sources of Authority for Control of
Technical Information
The three primary sources of authority for United States
Government controls over the communication of "development
information" are (a) the Export Administration Act of 1979 16/
and its implementing regulations 17/, for information having
both civilian and military applications; (b) the Arms Export
Control Act 18/ and its implementing regulations 19/, for
information pertaining solely to defense articles and defense
services; and (c) the Atomic Energy Act 20/, for information
relating to nuclear materials, weapons and applications.
Other sources of authority may be relevant in particular
circumstances. The Invention Secrecy Act of 1951 and its regu-
lations 21/ may be the basis for a secrecy order in instances
where a patent application containing technical information is
determined to require controls for national security purposes.
Additional sources of specialized authority include the Trading
With the Enemy Act and its regulations 22/ and the Inter-
national Emergency Economic Powers Act. 23/ The former
15/ Id.
16/ 50 U.S.C. App. 2401 et seq.
17/ 15 C.F..R. 368 et seg.
18/ 22 U.S.C. 2751 et seq.
19 22 C.F.R. 125 et seg,
20/ 42 U.S.C. 2011 et sec, 2139.
21/ 35 U.S.C. 181 et seg.; 37 C.F.R. 5.1 et sue.
22/ 50 U.S.C. App. 1 et sec.; 31 C.F.R. 500.101 et seq.
23/ 50 U.S.C. 1701 et ("IEEPA")
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statute is generally applicable, however, only in the context of
commercial dealings with specific, previously designated foreign
countries, while the latter statute requires a declaration of
national emergency for its invocation. 24/
The Export Administration Act and the Arms Export Control
Act are presently applied through their implementing regulations
to have practical impact only upon "development information"
rather than "research information". 25/ The Atomic Energy Act
applies not only to development information that relates to
atomic energy and nuclear materials, but also to research
information since such information relating to nuclear materials
and atomic energy is of manifest practical value. 26/ The Trading
With the Enemy Act and the International Emergency Economic Powers
Act also may apply to both types of information if they appear in
a commercial context. 27/ The Invention Secrecy Act, by its
nature, contemplates practical application since it applies to
information included in a patent application. 28/
Export Administration Act and Export
Administration Regulations
The Export Administration Act (EAA) 29/, administered by
the Commerce Department 30/, encompasses a broad range of
"development information", identified in this context as
"technology" or "technical data". 31/ The statutory language
demonstrates that Congress contemplated export controls of
24/ The IEEPA was invoked during the Iranian hostage crisis
and, core recen ly in Executive Order 12444, 48 F.R. 48215
(Octob 14, 198 ), to sustain the Export Administration
Regulations for several weeks between the expiration of the
Export Administration Act and its extension by the Congress
until February 1984.
25/
Infra, n. 12.
26/
Infra, n. 20.
27/
Infra, n. 22,
23.
28/
Infra, n. 21.
29/
Supra, 50 U.S.C. App. 2415(4).
30/
50 U.S.C. App. 2409, -11, -15(5).
31/
15 C.F.R. 379.1(a).
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certain types of information as well as hardware and equipment
since the statute refers repeatedly to control of both "goods
[and/or] technology", 32/ and "technology" is defined to
include a variety of information of practical value, including
technical data. 33/
The Secretary of Commerce maintains the Commodity Control
List (CCL) which identifies the "goods" and "technology" that
are subject to the licensing requirements of the EAA. 34/ The
"technology" that is subject to EAA controls is defined in the
Export Administration Regulations (EAR) as technical data "that
can be used, or adapted for use, in the design, production,
manufacture, utilization, or reconstruction of articles or
materials" without reference to whether those articles or
materials are themselves included on the CCL. 35/ This infor-
mation may be in tangible form, such as blueprints or manuals,
or may be conveyed by intangible means, such as by the provision
of technical services. 36/
The 1979 revision of the EAA required the Defense Department
to develop a list of technologies considered to be militarily
"critical". 37/ This list was to be prepared for incorporation in
the Commodity Control List, thereby facilitating control of these
"militarily critical" technologies. 38/ This process has not been
completed to date, although DOD has published a Table of Contents
for the list. 39/
32/ See, e.g., 50 U.S.C. App. 2401(5), (8), 2402(2), (6).
33/ 50 U.S.C. App. 2415(4).
34/ 50 U.S.C. App. 2403(b).
35/ 15 C.F.R. 379.1(a).
36/ Id.
37/ 50 U.S.C. App. 2404(d)(2).
38/ Id. 2404 (d) (3) - (5) .
39/ 45 Fed. Reg. 65014 (1980). The Department of Energy also
published a List of Energy Related Militarily Critical
Technologies in support of the DOD effort. 45 Fed. Reg. 65152
(1980).
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The EAA authorizes export controls for three basic purposes:
(a) to protect U.S. national security interests, (b) to further
U.S. foreign policy objectives, and (c) to protect the U.S.
economy by limiting the export of materials that are in short
supply domestically. 40/ The national security controls are the
most important of the three for purposes of this discussion since
they may be applied to any transfer of technology that would
make a significant contribution to the military potential of any
country that would be detrimental the national security of the
United States. 41/
The Export Administration Regulations (EAR) extend this
control authority to any person or technology within the
jurisdiction of the U.S. 42/ and limit any (a) export of
technical data from the U.S., (b) reexport of U.S.-originated
technical data from one foreign destination to another, and
(c) export or reexport between foreign destinations of foreign
materials that incorporate U.S.-originated technical data. 43/
Any transfer of "development information" that falls within
these broad controls over technical data requires a validated
(i.e., approved) license except to the extent that the EAR
provide a general license (i.e., no approval required) for
transfers of publicly available or scientific or educational
data, or for transfers to certain destinations. 44/ Since the
EAR controls of technical data are broader than those concerning
goods, there may be circumstances where a license would be
required for the export of "development information" even though
no license would be required for the export of goods produced by
that technology to the same destination. This conclusion is
based on the fact that technology relating to nonmilitary
commodities that are themselves uncontrolled may be useful
for the production of military materials.
40/ 50 U.S.C. App. 2402(2).
41/ Id. , 2402 (2) (A).
42/ The jurisdiction of the United States may reach to persons
and information outside the United States, its possessions and
territories. See, 50 U.S.C. App. 2404(a), 2415(2), 15 C.F.R.
379.1(b), (c), 379.8.
43/ 15 C.F.R. 379.1(b), (c).
44/ 15 C.F.R. 370.3(a), 379.2-.6.
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"Export" is defined in the EAR to include not only (a) any
actual transmission of "development information" out of the
U.S., but also (b) any release of such information in the U.S.
with knowledge or intent that the information will be trans-
mitted out of the U.S., or (c) any release abroad of such
information that originated in the U.S. 45/ Such release of
information may take the form of visual inspection of equipment
or facilities by foreign nationals, oral exchanges in the U.S.
or abroad or the application abroad of knowledge or experience
acquired in the U.S. 46/
A broad definition of "technical data" thus is combined
with a broad definition of "export" to require, with very few
exceptions, a license for virtually any disclosures to foreign
nationals in the U.S. or any transmission or use abroad of most
"development information." As mentioned earlier, the EAA and
EAR contemplate two basic types of licenses: "general" and
"validated". The broad authority asserted by the expansive
definitions in the EAR is made less burdensome through the
creation of general licenses in the EAR. These have the
character of regulatory exemptions and generally require no
formal application or notice to Commerce so long as the export
of the technical data in question meets the standards articu-
lated in the EAR.
One type of general license permits any export of
"development information" 47/ that has been made generally
available to the public in any form. This concept of public
availability includes oral or visual release at "open"
conferences, lectures, trade shows, etc., and publications
that are free or available without restriction at minimal cost
(i.e., the cost of publication rather than of the data) or
readily available at libraries open to the public. 48/ An
"open" conference would presumably include such features as
advance announcement or other notice that indicates the session
is known and open to technically qualified members of the
public, subject to administrative considerations such as space
limitations and the payment of registration fees, and an intent
that proceedings, reports, or the like will be published and
readily available in connection with the conference.
45/ 15 C.F.R. 379.1(b) (1) .
46/ 15 C.F.R. 379 (b) (2) .
47/ 15 C.F.R. 379.3(a).
48/ Id.
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A general license also permits release of scientific or
educational information that is not directly and significantly
related to the design, production, or utilization of industrial
processes: "research information". 49/ Authority is also
provided for academic classroom or laboratory instruction
involving such information so long as the subject is not contract
research directly and significantly related to industrial purposes
or processes: "development information". 50/ Limited general
license authority is also available in certain situations
involving U.S. or foreign patent applications. 5l
The second type of general license that is provided in the
EAR for the transfer of "development information" is more limited
and depends upon the nature of the information and its intended
destination. 52/ Generally, the export of such information
relating to nonmilitary industrial processes to Free World
countries is permitted, although in some cases the recipient
must provide written assurance that the data will not be
reexported. 53/ This license is not available where there is
reason to believe the data is related to certain identified
products or processes. 54/
Except for transfers to Canada where most types of
information may be sent without a license of any type, 55/
any other transfer of "development information" that is directly
related to an item on the Commodity Control List or directly and
significantly related to any industrial process, requires a
validated license for export to countries to which exports are
controlled for national security purposes. 56/ Such licenses
require the approval of the Department of Commerce. 57/ Where
49/ 15 C.F.R. 379.3(b) (1).
50/ Id. , 379.3 (b) (2) .
51/ Id., 379.3(c).
52/ Id., 379.4.
53/ Id., 379.8.
54/ Id., 379.4(c).
55/ Id., 379.2, n. 7.
56/ Id., 379.5(a).
57/ Id.
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the information in question has been developed in whole or in
part as a direct or indirect result of Department of Defense
funding, the approval of the Department of Defense may also be
necessary. 58/
As noted above, information of whatever nature, whether
"research" or "development", is not subject to the EAA and EAR
formal validated licensing requirements if it has been made
"publicly available". 59/ This means the information has been
made available in the public media, is available at public
libraries, or is available for merely the cost of its publication
rather than its intrinsic value. 60/ Thus, the EAR appear to
have been developed on the presumption that the owners of
commercially valuable information will, in effect, identify the
information requiring license approval for its transfer by their
efforts to protect it from competitors.
Arms Export Control Act and International
Traffic in Arms Regulations
The Arms Export Control Act (AECA) 61/ provides the legal
authority to control the transfer of articles and services that
have direct military application. While the statute does not
expressly provide that information, such as "technical data" as
defined in the EAR, is included within the meaning of the terms
"defense services" or "defense articles", the language of the Act
is sufficiently broad to authorize controls over this area. 62/
This authority, administered by the Department of State, is
.implemented by the International Traffic In Arms Regulations
(ITAR). 63/ Those articles and services for which a license is
required prior to exportation are designated in the United States
58/ Id., 370.10, 379.1(b), n. 4.
59/ Id., 379.3(a).
60/ Id.
61/ 22 U.S.C. 2751 /et seg.
62/ 22 U.S.C. 2403(e), 2778, 2794(4), (7).
63/ 22 C.F.R. 121 / et seg., 125.01.
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Munitions List, which is included in the ITAR, by the Secretary
of State with the concurrence of the Secretary of Defense. 64/
The EAA and EAR controls differ depending upon the particular
destination to which the controlled technology is being exported.
However, the AECA and ITAR control the export of defense-related
materials and technical data, as well as classified information,
to all foreign destinations. All exports of such items are
prohibited to certain countries as a matter of policy. 65/
The U.S. Munitions List, like the Commodity Control List,
controls "technical data" related to items on the list. 66/
Although slightly different from the definition in the EAR, the
ITAR definition of "technical data" is equally as broad.
Generally, the ITAR definition also applies to "development"
rather than "research" information. The definition includes
classified information relating to items on the U.S. Munitions
List, but also:
unclassified information that can be
(a) [a]ny
used, or be adapted for use, in the design,
production, manufacture, repair, overhaul,
processing, engineering, development, operation,
maintenance, or reconstruction of army
ammunition, and implements of war on the U.S.
Munitions List; or (b) any technology which
advances the state-of-the-art or establishes a
new art in an area of significant military
applicability in the United States; . . . 67/
With respect to subpart (b) of this definition, the exporter has
tha specific duty to consult with appropriate U.S. Government
officials and to determine whether the technical data in question
"advances the state-of-the-art or establishes a new art". 68/
64/ 22 U.S.C. 2778; E.O. 11958, S 1(e), 42 Fed. Reg. 4311
(Jan. 18, 1977), as amended by E.O. 12118, 44 Fed. Reg. 7939
(Feb. 6, 1979).
65/ 22 U.S.C. 123.01, .10, 126.01.
66/ Id., 121.01, Category XVIII; 125.01, et seg.
67/ Id., 125.01 (emphasis added).
68/ Id., n. 1.
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These provisions may be applicable to "research information",
or "emerging technologies", if "state-of-the-art" is intended to
include any new information in any area that may have military
significance. The reference in subpart (b) of the definition to
"significant military applicability", however, seems to imply
practical use and may serve to exclude information that is
not "development information".
The ITAR controls on technical data apply whether the
information is disclosed orally, visually or by documentary
means. 69/ The regulations apply whether the information in
question is transmitted out of the United States by human or
other means, or whether the "export" occurs in the course of
visits or participation in conferences and trade fairs abroad by
U.S. citizens, or by visits or participation in conferences and
trade fairs in the U.S. by foreign nationals. 70/
As with the EAA and EAR, regulatory exemptions are utilized
to narrow the expansive reach of these ITAR provisions. Under
the ITAR, however, the format of the exemptions is to require no
license in certain circumstances rather than to create a general
license requiring no formal application or review. 71/ There
are several limited exemptions that may be relevant in particular
situations (e.g., most unclassified information may be exported
to Canada 72/ and no license is required to ship additional
copies of information previously exported to the same recipient
under a license). 73/ An important exemption provides that no
license is necessary for the export of "technical data" that is
"in published form and subject to public dissemination". 74/
This includes information that is:
(a) sold at newsstands and bookstores;
(b) available without charge or by subscription
or purchase to any person without further
restriction;
69/
Id., 125.03.
70/
Id., ? 125.03,
125.04(c).
71/
Id., 125.11, .12.
72/
Id., 125.12.
73/
Id., 125.11(8).
74/
Id., 125.11(1)
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(c) determined to be eligible for second-class
mailing privileges; or
(d) freely available at public libraries. 75/
Again, as under the EAR, it appears that these provisions
embody an assumption that persons or entities in possession of
information will act in their commercial self-interest to identify
that information which is valuable and worthy of protection.
However, unlike the EAR, the ITAR provide that persons seeking to
publish "technical data," whether or not developed under contract
with the Government, have the "burden" of obtaining "appropriate"
U.S. Government approval for such publication. 76/ This ITAR
requirement appears to require an export license in order to
publish "development information" in the United States. To the
best of our knowledge, however, it has never been applied to
prevent publication of such information 77/ and has not been
tested in the courts. The general prohibition in the ITAR on
exporting technical data has been upheld, however, as to
information directly and significantly related to specific
articles on the Munitions List. 78/
The ITAR require prior State Department approval for
presentations to foreigners that involve information concerning
Munitions List items and the disclosure of technical data. 79/
Further, the ITAR require that manufacturing or technical
assistance agreements between persons in the U.S. and persons
abroad relating to items on the Munitions List be approved by
State 80/ and include certain conditions, such as a bar on
disclosure of technical data to particular third countries. 81/
Thus, the ITAR control the exportation of "development information"
under manufacturing licenses or technical assistance agreements
when that information relates to items on the Munitions List or a
new area of significant military capability.
75/ Id.
76 Id., 125.11(1), n. 3.
77/ See note 89, infra, and accompanying text.
78/ See, United States v. Edler Industries, Inc., 579 F.2d 516
(9th Cir. 1978).
79/ 22 C.F.R. 125.03.
80/ Id., 124.01.
81/ Id., 124.10(i).
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The AECA licensing process for the export of technical data
has two main elements. First, the sensitivity of the data is
evaluated by State and the appropriate elements of the Defense
Department as well as other agencies when necessary because of
the nature of the data involved. 82/ Second, State reviews the
proposal for consistency with U.S. foreign policy objectives. 83/
Unlike the EAA process, no specific reference is made to the
foreign availability of the information in question. This factor
would not appear to be determinative in a licensing decision under
the AECA except to the extent that such availability has an obvious
bearing on the sensitivity of the export.
The authority of the Department of Commerce to impose export
controls under the EAA extends only to items not controlled by
other statutes. 84/ In cases where it is unclear whether the EAA
or the AECA applies, Congress has directed the Commerce Department
to coordinate the application of the EAA with the AECA. 85/ Thus,
there may be cases where Commerce will require the approval of the
State Department before granting an export license.
The State Department issued a policy statement in 1980 that
was intended to clarify the scope of the ITAR controls on "techni-
cal data" in the context of cryptology. 86/ Technical data was
described as not including general mathematical, engineering,
statistical or other basic and theoretical ("research") information
that is not reasonably expected to have direct application to items
on the Munitions List (i.e., "development information"). 87/
The statement also reaffirmed that professional and academic
presentations, informal discussions and equipment demonstrations
that involve disclosure of "technical data" to foreign nationals
require State Department approval. 88/ The policy statement also
advised, however, that no prior approval is required for publi-
cation of information within the United States within the meaning
of the ITAR provisions authorizing a general exemption from the
82/ Id., 124.02, 125.05.
83/ Id., 123.05, 124.01.
84/ 50 U.S.C. App. 2416(a)
(e)(nuclear materials)..
85/ Id., 2416(b).
15 C.F.R. 370.10(a)(defense materials),
86/ Department of State Munitions Control Newsletter,
"Cryptography/Technical Data", February 1980.
87/ Id.
88/ Id.
No. 80.,
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AECA licensing requirement for information "in published form and
subject to public dissemination". 89/ Those provisions were not
intended, despite the explicit reference to obtaining "appropriate"
U.S. Government approval before publication, to establish a prior
review requirement. 90/
Atomic Energy Act
Under the terms of the Atomic Energy Act 91/, all information
(whether "research" or "development" in nature) that concerns the
design, manufacture or use of atomic weapons, the production of
special material, or the use of such material in energy production
is designated as "Restricted Data" and thereby subject to the
control of the Department of Energy, the successor to the Atomic
Energy Commission for these purposes. 92/ Information within the
Restricted Data category is "born classified" in that it is subject
to Government control as Restricted Data from the moment of its
development, even when the information has been developed entirely
in the private sector.
This broad assertion of government control over the
disclosure and use of this particular category of information has
been challenged and sustained in the courts. In United States v.
The Progressive 93/, the Government obtained a preliminary
injunction, that withstood subsequent review 94/, against the
publication of information concerning the construction of a
Hydrogen Bomb. The cases were ultimately dismissed, at the
request of the Government, because similar information published
elsewhere had been widely disseminated.
89/ Id.; 22 C.F.R. 125.11(1).
90/ Id.; 125.11(1), n. 3.
91/ 42 U.S.C. 2011, et sec.
92/ 42 U.S.C. 2014(y).
93/ 467 F. Supp. 990 (W.D. Wis. 1979).
94/ Motion for Reconsideration Denied, 486 F. Supp. 5
(W.D. Wis. 1979); appeal dismissed without opinion, 610 F.2d 819
(7th Cir. 1979).
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The Act also establishes specific controls and requirements
for the export of Restricted Data. 95/ Such information may
only be exported pursuant to a special agreement for nuclear
cooperation authorized by the President. 96/ The Act also
establishes penalties for illegal acts involving Restricted
Data. 97/ Information that has been declassified or removed
from the restricted data category may be controlled under a 1982
addition to the Atomic Energy Act. 98/ Prbposed Department of
Energy Regulations were published to establish these controls in
April 1983. Other information related to the security of nuclear
facilities may be controlled by the Nuclear Regulatory Commission
("Commission") and the Department of Energy, respectively, under
provisions enacted in 1980 and 1982. 99
Unclassified information relating to the production of
special nuclear material abroad, not authorized under an agree-
ment for cooperation with a foreign country, may not be trans-
ferred to that country without authorization by the Department of
Energy. 100/Authorization by the Department of Energy does
not preclude the Commerce Department from requiring a validated
license for the export of "technical data" under the Export
Administration Act. 101/ Finally, the Atomic Energy Act
establishes rigorous export controls over the export of
information defined to be "sensitive nuclear technology" in the
Nuclear Non-Proliferation Act of 1978. 102/
Thus, control may be asserted under the Atomic Energy Act
over the publication or "export" of either "research" or
"development" information that constitutes Restricted Data.
The Commission has the authority to review, declassify and
remove information from this category where it determines that
publication would not constitute "an unreasonable risk to the
common defense and security", although in some instances the
concurrence of the Department of Defense is required. 103/
95/
42 U.S.C. 2162, 2164.
96/
id.
97/
Id.
2272-77.
98/
Id.
2168.
99/
Id., 2167, -68.
100/ Id.,
101/ Id.,
2131-40.
2166.
102/ 22 U.S.C. 3201, et se q.
103 42 U.S.C. 2162(b).
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Invention Secrecy Act
The Invention Secrecy Act of 1951 (ISA) 104/ authorizes
the U.S. Government to prevent the public dissemination through
the patent process of information submitted in connection with an
application for patent protection. This control is accomplished
by the issuance of a secrecy order precluding the applicant from
further disclosing the information in the application. 105/ This
authority was first enacted in 1917 and was limited to time of
war in both its effect and duration. In 1940, the limitation to
wartime was removed and the Commissioner of Patents was empowered
to withhold the award of a patent for any period determined to be
in the national interest. This authority was extended for the
duration of World War II in 1942 and was made permanent in 1952.
Information included in a patent application is kept in
confidence by the Patent Office and is not disclosed until a
patent is granted. A small staff in the Patent Office performs
a national security review of each of the approximately 100,000
patent applications that are filed each year. This staff is
allotted six months for its review and for any necessary consul-
tation with and review by the defense agencies. 106/ The staff
relies for guidance in its review on the Commodity Control List,
the Munitions Control List and the Military Critical Technologies
List, as well as general information acquired in the course of its
dealings with the various national security and export control
agencies. During the review period, the applicant may not seek a
foreign patent for an invention made in the United States without
a "license" from the Patent Office. 107/
There is no means to bar publication of information by an
applicant prior to filing a patent application, however, and a
patent may be granted after publication so long as the application
was filed prior to, or within one year after, the publication
date. 108/ This situation would obviously negate the effective-
ness of any secrecy order and, again, demonstrates an underlying
reliance on the commercial self-interests of the possessor of the
relevant information.
104/ 35 U.S.C. 181-88.
105/ Id. 181.
106/ See Rules of Practice In The Patent Office, 37 C.F..R. 5.1-5.23.
107/ 35 U.S.C. 184.
108/ 35 U.S.C. 119.
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The ISA establishes two categories of authority for
Government action. 109/ Where the Government has a property
interest in the matter that is the subject of the patent
application (i.e., it relates to contract or research activities
funded by a government agency), the Commissioner solicits the
opinion of the funding agency and issues a secrecy order if
notified that publication or disclosure of the information might
be detrimental to the national security. 110/ Where the
Government does not have a property interest, the advice of
appropriate defense agencies is solicited when, in the
Commissioner's opinion, disclosure might be detrimental to the
national security. 111/ If the defense agency determines that
a secrecy order is justified, the Commissioner orders the
material to be kept secret and a patent withheld. 112
A patent secrecy order is issued for one year but is
renewable annually based on a determination that the national
interest requires continued nondisclosure. 113/ The applicant
has the right to seek compensation from the Government for
damages related to the imposition of the secrecy order and for
the Government's use, if any, of the information in question. 114/
The number of secrecy orders issued each year is relatively
small. In fiscal year 1979, for example, 107,409 patent appli-
cations were received. Of these, 4829 were forwarded to the
defense agencies for review. Following that review, 243 secrecy
orders were issued. Only 43 of these involved patent applications
that had not been classified for national security purposes,
thereby indicating a prior governmental interest, when filed. 115/
This authority has been reviewed by several courts but has not been
challenged on First Amendment grounds. 116/
109/ 35 U.S.C. 181.
110/ Id.
111/ Id.
112/ Id.
113/ Id.
114/ Id., 183.
115/ See Hearings Before a Subcommittee of the House Committee
on Government Operations, The Government's Classification of
Private Ideas, 96th Cong., 2d Sess., at 2 (1980) (Statement of
Rene D. Tegtmeyer, Assistant Commissioner for Patents, Department
of Commerce).
116/ See, e.g., Halpern v. United States, 258 F. 2d 36 (2d Cir. 1958).
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Trading With The Enemy and International
Emergency Economic Powers Acts
Under the Trading With The Enemy Act 117/ and the
International Emergency Economic Powers Act 118/, commercial
exports to certain destinations of information of any nature
may be controlled in times of war or national emergency. The
Treasury Department generally has been designated to administer
these controls, some of which remain in effect today.
Trading With The Enemy Act
The Trading With The Enemy Act (TEA) 119/ gives the
President broad powers to control trade with foreign countries.
Prior to 1977, the statute granted these powers "[d]uring the
time of war or during any other period of national emergency
declared by the President." 120/ This provision was amended in
1977 to grant these powers only "[d]uring the time of war." 121/
However, controls in place prior to that date may be extended
annually by the President. 122/ The relevant regulations have
been repeatedly extended and were last extended by President Reagan
until September 14, 1984. 123/
The TEA grants the President the authority to regulate any
transactions in foreign exchange or credit, payments between
banking institutions, and most other transactions involving gold
or silver coin, bullion, currency or securities. 124/ He may also
regulate or prohibit any transactions involving any property in
which any designated foreign country or any of its nationals has
any interest. 125/ These powers apply to transactions
117/ 50 U.S.C. App. 1, et seg.
118/ 50 U.S.C. 1701, et sec.
119/ Supra, n. 117.
120/ 50 U.S.C. App. 5(b)(1).
121/ Id., as amended December 28, 1977 by Pub. L. 95-223, 91
Stat. 1625, Title I, 101(a).
122/ Id. 101(b).
123/ Extension of the Exercise of Certain Authorities Under the
Trading With the Enemy Act, 48 F.R. 40695 (Sept. 7, 1983).
124/ 50 U.S.C. App. 5(b)(1).
125/ Id.
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involving any person or any property subject to the jurisdiction
of the United States. 126/ The TEA also grants the President
broad powers over the property and interests of designated foreign
countries or their nationals. 127/ The combined effect of these
authorities is to regulate all forms of commerce between the U.S.
or its nationals and the designated "enemy" countries.
Regulations promulgated under this statute establish a
foreign assets control system and prohibit, unless specifically
authorized by the Secretary of the Treasury, a variety of
transactions involving specific foreign countries. 128/ The
countries identified under this regulation at this time are
North Korea, Cambodia, and North and South Vietnam. 129/
A variety of transactions are prohibited if they are effected
by or on behalf of a designated country or its nationals, or if
they involve property in which such a country or its nationals
have any direct or indirect interest. 130/ In addition, unless
authorized by the Secretary of the Treasury, persons subject to
United States jurisdiction may not purchase or otherwise engage
in any transaction outside the United States involving materials
originating in North Korea, Cambodia, or North and South
Vietnam. 131/ The definitions accompanying these prohibitions
are broadly drawn. 132/
The Secretary of the Treasury may authorize the transactions
described above by issuing a general or specific license. 133/
General licenses, as with the EAA, take the form of regulatory
exemptions. 134/ Other transactions not authorized by the
general licenses require a specific license from the Office of
Foreign Assets Control in the Treasury Department. 135/
126/ Id.
127/ Id.
128/ 31 C.F.R. 500, et seg., 500.201.
129/ Id., 500.201(d).
130/ Id.
131/ Id., 500-204.
132/ Id., 500-301.
133/ Id., 500-201.
134/ Id., 500.505-.535, .563-1565.
135/ Id., 500.318, 549-.562, .801.
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In addition, the TEA regulations prohibit shipments to
designated foreign countries of (a) materials on the Commerce
Department's Commodity Control List, (b) materials whose
unauthorized exportation from the United States is prohibited by
regulations issued under the Mutual Security Act of 1954 (the
Arms Export Control Act), and (c) materials or facilities
relating to atomic energy whose exportation from the United
States is prohibited under the Atomic Energy Act of 1954. 136/
Unless authorized by the Secretary of the Treasury or his
designee, no person within the United States may purchase or
sell or arrange the purchase or sale of such materials in any
foreign country or obtain any credit or payment from any banking
institution in connection with any shipment of such materials
from any foreign country directly or indirectly to Albania,
Bulgaria, Cambodia, Czechoslovakia, Estonia, East Germany, East
Berlin, Hungary, Latvia, Lithuania, North Korea, Outer Mongolia,
People's Republic of China, Poland and Danzig, Romania, South
and North Vietnam, Tibet, and the Soviet Union. 137/ This
approval requirement is in addition to the licensing and
approval mechanisms established under the EAA, AECA and AEA.
The regulations also control Cuban assets and all financial
and commercial transactions involving Cuba, its nationals or
persons acting on their behalf. 138/ The prohibitions
regarding transactions involving Cuba or its nationals are
virtually identical to those discussed above and prohibit any
person subject to United States jurisdiction from dealing in
materials originating in Cuba unless licensed by the Secretary
of the Treasury. 139/ These regulations also define "license,"
"general license," and "specific license" in the same manner as
described above. 140/
136/ Id., 505.10.
137/ Id., 505.10.
138/ Id., 515.101, et se q.
139/ Id., 515.204.
140/ Id., 515.316-.318.
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Although the primary focus of the TEA and its implementing
regulations is on currency and material transactions, the
operative provisions are sufficiently broad so as to control a
wide range of transactions involving both "development" and
"research" information. Also, unlike the control mechanisms
discussed earlier, there appears to be little attention or
importance to public availability or intrinsic value.
International Emergency Economic Powers Act
The International Emergency Economic Powers Act (IEEPA) 141/
was enacted in 1977 and provides the President with broad
authorities, similar to those in the TEA, to regulate and require
licenses for a wide variety of commercial and banking trans-
actions involving any person or property subject to U.S. juris-
diction. 142/ These authorities may be used when a "national
emergency", as opposed to the state of war required under the
TEA, has been declared to deal with an "unusual and extraordinary
threat to U.S. national security, foreign policy or economic
interest emanating" in whole or substantial part from abroad. 143/
Congress must be notified when these authorities are exercised
and national emergencies terminate at the end of one year, unless
renewed by the President. 144/ This statutory authority has been
invoked to impose restrictions on trade and currency transactions
with Iran during the hostage crisis and was upheld by the courts
141/ 50 U.S.C. 1701, et se q.
142/ Id., 1702.
143/ Id., 1701.
144/ Id., 1703. The statute as enacted contains authority for
Congress to act to end such a national emergency by adopting a
concurrent resolution to that effect. Under Immigration and
Naturalization Service v. Chadha, 103 S.Ct. 2764 (1983), however,
this provision represents a form of invalid legislative veto.
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in that context. 145/ More recently, President Reagan used this
authority to sustain the Export Administration Regulations when
the EAA expired in October 1983. 146/
The IEEPA excludes from its terms, among other things,
personal communications that do not involve a transfer of
anything of value. 147/ Thus, by implication as is true also
with the TEA, "development" and "research" information in a
commercial context may be caught up in the regulatory structure
created by the IEEPA.
145/ See Dames & Moore v. Regan, 453 U.S. 654, 668 (1981) (an
executive order involving emergency authority is "supported by
the strongest presumptions and the widest latitude of judicial
interpretation, and the burden of persuasion would rest heavily
upon any who might attack it."); United States v. Spawr Optical
Research, Inc., 685 F.2d 1076, 1080-81 (9th Cir. 1982), cert.
denied, 103 S.Ct. 1875 (1983) (upholding Presidential authority
to continue controls under an executive order and the Trading
With The Enemy Act, IEEPA's predecessor, during a lapse in the
EAA); and House Report No. 95-459, 95th Cong., lst Sess.
(H.R. 7738), p. 13 ("Should a lapse [of the EAA] occur, however,
the authority of Title II of [IEEPA] could be used to continue
the Export Administration Regulations in effect if, and to the
extent that, the President declared a national emergency. . . .
146/ See n. 24 supra.
147/ 50 U.S.C. 1702(b).
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