Faceless bureaucrats, not blue helmeted elk

I spent some time investigating ITAR in regards to the files for 3-D printing of weapons. It’s interesting stuff. The implications are huge.

I am not a lawyer although one or more of my sources for this post are. But none claim expertise in this area because it is such a specialized field. One source did claim “I know something about this”. The following may be a too broad interpretation of the law and the legal experts in the field will have to give us a more factual read.

The U.S. Department of State Directorate of Defense Trade Controls is the agency we have concerns about. Their mission is stated as:

The U.S. Government views the sale, export, and re-transfer of defense articles and defense services as an integral part of safeguarding U.S. national security and furthering U.S. foreign policy objectives. The Directorate of Defense Trade Controls (DDTC), in accordance with 22 U.S.C. 2778-2780 of the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), is charged with controlling the export and temporary import of defense articles and defense services covered by the United States Munitions List (USML).

The documents of particular interest in figuring out the implications appear to be these two:

  1. SUBCHAPTER M—INTERNATIONAL TRAFFIC IN ARMS REGULATIONS: PART 120—PURPOSE AND DEFINITIONS
  2. Title 22: Foreign Relations: PART 121—THE UNITED STATES MUNITIONS LIST

One of my sources ran up against ITAR due to being an NRA Firearms instructor. The NRA recently sent out a notice to instructors telling them not to provide training to foreign students. This is because, according to the first document above:

§ 120.9 Defense service.
(a) Defense service means:
(1) The furnishing of assistance (including
training) to foreign persons,
whether in the United States or abroad
in the design, development, engineering,
manufacture, production, assembly,
testing, repair, maintenance,
modification, operation, demilitarization,
destruction, processing or use of
defense articles;
(2) The furnishing to foreign persons
of any technical data controlled under
this subchapter (see § 120.10), whether
in the United States or abroad; or
(3) Military training of foreign units
and forces, regular and irregular, including
formal or informal instruction
of foreign persons in the United States
or abroad or by correspondence
courses, technical, educational, or information
publications and media of
all kinds, training aid, orientation,
training exercise, and military advice.
(See also § 124.1.)

In the last few months the Department of State is taking a much broader interpretation of this and other sections of U.S. code and applying it to gun owners, manufacturers, and instructors. There are two hypotheses for the change. One is that John Kerry is driving the change. The other is that is part of what Obama was talking about when he said he was working on gun control “under the radar”. The failure to get any gun control through Congress could have inflamed him enough that he sent out the word to find ways to punish us for our success in blocking him.

The law was intended to apply to people selling and providing real militarily useful products and training to our Cold War enemies. Things like night vision equipment and training on tank warfare or repairing high performance jet engines were valid things to be concerned about. And even though rifles that were particularly well suited for winning NRA High Power competition and training for doing better at USPSA matches could have military application the people at the Department of State ignored that. They were concerned with the nation states of the world that declared us their enemies rather than the “right-wing NRA domestic terrorists” who taught Home Firearm Safety classes a few times a year.

The law was written before the Internet and personal computers existed and some of the concepts that made sense then are absurd now. In the mid ‘90s we had the battle over encryption technology being declared an export restricted munitions. This was ultimately decided in favor of freedom under the First Amendment (the Ninth Circuit Court of Appeals in the Bernstein case and the Sixth Circuit Court of Appeals in the Junger case). I don’t see why the present issue wouldn’t fall under the same protection and it might. But being right and being able to fight it to the end in court are two different things.

My sources seem to think the biggest concern is that all firearms instructors, “Mom and Pop” FFLs, and of course libertarian college students with a mischievous streak (borrowing and mangling a phrase from Paul Barrett) will be required to pay the $2000+/year license fees to register with the Department of State. This would be even though there was no technology, products, or training being exported. Just that you’re “in the business” could make you subject to the restrictions and require that you register with the Department of State and pay the annual fee. The government wouldn’t have to directly “stop the signal” in it’s entirety. There a million different signals and they only have to make examples of a few people and most others would want to avoid the hassle and “would lead more compliant lifestyles”. There is very little profit to be made in being a martyr for the cause. The 3-D printer issue could just be noise and a distraction to a much bigger concern.

Ultimately the courts and Congress can probably get most of this straightened out on the side of freedom. If they don’t freedom will be lost to faceless bureaucrats not “blue helmeted elk” that you can shoot at as they go door-to-door confiscating your guns.

In the mean time an enraged narcissist who didn’t get his way with the legislature could conceivably apply the regulations to people posting YouTube videos on how to grip your pistol.

16 thoughts on “Faceless bureaucrats, not blue helmeted elk

  1. “Apply the regulations to people posting YouTube videos on how to grip your pistol?”

    De Minimus Non Curat Lex. Unless it’s to scare the other little fishies.

  2. I could not possibly ever take their assertions seriously, being as the U.S. government has been actively arming Hamas and the Muslim Brotherhood, plus that cute little trick of running guns to Mexican gangs. God only knows what they’ve been giving the Chinese. They’re hypocrites to the maximum and have zero credibility of any kind. Any of this bullshit they enforce against honest American gun owners is pure political persecution and nothing else.

  3. The de minimus non curat lex principle sounds good, but there’s a caveat magnus here… That is, before the judge could throw it out you’ve already retained legal counsel at great expense. They know that, that’s how they play the game.
    So, you could be a target to scare the other fishies, or part of a concerted attack, but either way, you run the risk that the judge would not view this as a de minimus. I know, I’ve been there.

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  5. It occurs to me that this is a lot like FedGov gets its panties in a wad and decides to ban mechanical pencils so nobody can “export” the “arms.” It’s REALLY, REALLY stupid. The official who promulgated it ought to be removed from office on account of mental defect. It’s THAT dumb.

    Just because they can get their hands on one particular wireframe model, they think THAT gets the barn door closed before the horse is … too late. Already out. Idiots.

    M

  6. If this principle (ITAR) can be made to apply to weapons training, then are we violating it if we teach our kids and grandkids to shoot? How about our gun clubs’ teaching programs? Are they at risk?

    If the Feds go gonzo on ITAR, and start persecuting dads and gun clubs for teaching kids to shoot, then I say that Line In the Sand has been crossed, and it’s time to actively consider removing this Government.

    Holding fire, waiting for the Last Resort to be a Judge who might have Freedom and the Constitution in mind, OR MIGHT NOT, is not MY idea of living in a free Nation.

    If this sort of persecution starts, those Federal Persecutors and those Courts are corrupt, and are legitimately removeable under the full meaning of the Second Amendment.

    • Perhaps. But we need to give the first three boxes of democracy a chance to work before we open the fourth. That last step is a BIG one.

    • There are two different issues here. One is who you can teach and/or share technology with and the other being required to register with the State Department and pay the annual license fee.

      I don’t think there is any question about it being legal to teach your kids, friends, and neighbors that are U.S. citizens. A broad reading of ITAR could be interpreted to mean that you could not teach a friend visiting from Canada without first getting permission from the Department of State. This would be extremely annoying but probably wouldn’t be sufficient hardship to convince a jury of your peers that “going all Second Amendment” was justified.

      The registration requirement is the big issue. Paying a fee of $2000+/year and registering with the Department of State so you could teach your grandkids to shoot is probably not going to happen. So what then? Fight it in court when they send you “the letter”? Ignore it until they subpoena you?

      Interesting questions. I’ll be thinking about solution to the problem in the next few days. I have some ideas but I need to do some more research first.

      • I’m a recently-certified NRA instructor and nothing in my training suggests or warns against teaching foreign students, and I don’t find anything in the updates and news sent to NRA instructors on the NRA Instructors web portal about it, do you have a copy of what was sent out?

  7. They will lose this one the second it hits a courtroom.

    The EFF already won this one. They tried to outlaw exporting the RSA encryption algorythm as a munition, so the EFF printed it on a t-shirt as a political statement, and deliberately wore it past a Customs check.

    Ther SCOTUS slapped down applying ITAR to information pretty damned fast at that point.

    Print the CAD file text on a t-shirt.

    • The CAD file is too large to print on a shirt.

      However, Magpul instructions for handguards come with an ITAR warning that you are not to show the instructions on how to swap handguards to a non-citizen. (Really.)

      How about an ITAR warning at the top of the site page that it’s illegal to view the site if you are not a US citizen?

      Problem solved.

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  9. So, would it apply to transmitting a particular John Wayne movie via satellite TV for viewing in Mexico? Perhaps “The Shootist”, in which he instructs Ron Howard on how to properly shoot a Colt Peacemaker?

  10. My understanding is that “US Persons” is not the same as US Citizens. IANAL yadda ya, but I think ITAR applies to US Citizens if they are acting as an agent of a foreign government or entity, e.g., someone shows you how to fix the jet engine (or grip the pistol?) while you are acting as an agent of a foreign entity, e.g., you work for Nokia or Dassault or whatever.
    Freaking everything is militarily useful. If it applies to gripping a pistol, it applies to resoling boots (military equipment maintenance). Cooking school. Auto mechanic class. If anyone pays this $2000 license, everyone does. DJ is right on the money with transmitting “The Shootist.” Thus ends satellite TV!

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