ITAR update

Last May I told of the risks posed to us by International Traffic in Arms Regulations (ITAR).

Yesterday I received an email from a friend who is a NRA Instructor who had concerns about the implications. He wanted more information so I had a long chat with my “source” last night. He is a lawyer and he got the advice from another lawyer to “Not get involved.” This is a very risky area. When Hillary was head of the State Department there wasn’t a problem. But with Kerry things changed.

He contacted the Department of State and asked about Basic Firearm Safety training. He wanted to know if this was considered regulated under ITAR. The answer came back, “Yes.”

The law, as written, is very broad. Strictly speaking; telling a foreigner the NRA three safety rules could be construed as a felony. All firearms are considered munitions and cannot be exported without a license. Hence telling someone how to load the magazine of a Ruger Mark III is training someone on the use of export controlled munitions.

http://www.law.cornell.edu/cfr/text/22/120.10
http://www.law.cornell.edu/cfr/text/22/120.16
http://www.law.cornell.edu/cfr/text/22/120.17

The advice is to not teach foreigners anything about firearms. This is also the advice from the NRA. From the NRA Instructors website:

NRA cannot provide any assistance in training foreign persons due to conflicting information from the U.S. Government regarding regulations pertinent to foreign persons and arms training. NRA cannot process any requests for assistance in training foreign persons. In view of the above, we regret to inform you that NRA cannot renew NRA firearm trainer credentials for any foreign national.

This is not good.

But what is “a foreign person”? My source emailed me the following “cheat sheet” to answer the question:

Status

Can Possess? Can Train?

US Citizen or National (not otherwise prohibited)

Yes Yes

Permanent resident (Green Card)

Yes Yes

Tourist visa or waiver

Yes No

Non-immigrant visa (H-1B,  J-1 etc.)

No No

Non-immigrant visa with valid hunting license or admitted for lawful hunting or sporting purposes

Yes No

I reported back to my friendly neighborhood NRA instructor, he replied with more than a little concern and anger about the situation and then I watched as the hits accumulated on my web page from last May.

As my source told me last night, “I used to think we would all be sent to prison because DMCA violations. Now I think it’s going to be because of ITAR.”

17 thoughts on “ITAR update

  1. I suspect a very good argument could be made that publishing and communicating the four rules is so integral to the success of maintaining an armed citizenry, a political purpose whose expression should be protected by the First Amendment, much less the Second, that doing so via an internationally-accessible website should be a Constitutionally-protected act.

    I say “should” because at least by the logic of the 9th Circuit’s panel decision last month in US v. Chovan — and of the dissent, which is more worrisome to me — this restriction might very well be upheld.

  2. Encryption software used to be covered by ITAR but was found to be protected by the First Amendment. I suspect most courts would find web publishing similarly protected. Further support might be had from the fact that many US military training manuals are published online. But direct instruction with firearm handling might be sufficiently different (because GUN!) to lose protection.

    INAL and I suspect this will have to be decided by the courts. And the decision could go either way depending on whether I’m the defendant teaching a Canadian participant how to reload my AR for the Boomershoot High Intensity event or it’s a US, legal resident, Muslim radical teaching another radical visitor from Afghanistan how to field strip an AK.

  3. I had a little export regulation training some years ago, and some more (though not on ITAR, since it’s not in our scope at work) more recently. One term of art you might want to examine is “deemed export”. That seems to mean “doing something akin to export by providing knowledge about controlled technology to a foreign person”. For example, having foreign people working on your encryption software is an issue.
    So… “foreign person” is a term with a specific meaning. I don’t remember who is included. Green card holders? Those *might* not be, but I wouldn’t count on it. Any other non-US citizen is almost certainly a “foreign person”. So while you cheat sheet may say that a tourist can possess a firearm (really? amazing.) I would not count on that to mean you can teach such a person about firearms.
    Given the truly unreasonable nature of these “laws” and the draconian penalties involved, about the only safe approach I can see is a rigorous insistence on “US citizens ONLY”.

  4. Wow. That’s like deeming intent or something. Bizarre. So it might be that you could take a foreign friend to the range, hand them a gun, and tell them to shoot and be safe, but not actually explain anything about ,how to use the gun or actually BE safe. That’s just twisted.

  5. Yes. As I tell my younger colleagues: no, it doesn’t make any sense. But it is enforced even so; ignore it at your peril.
    Some do. Philip Zimmerman became world-famous for creating and distributing PGP in spite of ITAR, but it took him a great deal of legal pain before he won that battle. Not a lot of people have that much persistence.

  6. Surely, gun handling skills, and the communication of gun handling skills, are an integral part of the right to keep and bear arms. So basic human rights don’t apply to foreigners in the U.S? If we can, and are even required to, violate their second amendment rights, then surely it becomes acceptable to violate all the other rights of foreigners.

    Then there is the fact that the U.S. Government has been equipping and training Hamas and other jihadist organizations for many years.

    This whole issue is a farce. Smoke and mirrors. A charade.

    A look into the past may shed some light on the present. In the 1800s you could walk from Mexico to Texas, or take a ship from Europe, and buy a gun in the U.S. with no paperwork. I believe that unless we were actively at war with your country you could do and learn anything here that a citizen could do, except vote, and with all the same protections. Land of the free and all. Am I wrong?

    Oh and; John Kerry is a twerp. A fake. An imposter. A plant. A shill.

    • On the other hand, if our government would come out and admit that it is engaged in an active war against liberty, then all of this shit begins to make sense.

    • Completely true. But you can still get arrested and imprisoned until a test case gets such a position tossed. while I’m sure that given enough time and money any regular poster or commenter hear would prevail in the courts on the merit of the law, it would be a long, ugly, uncomfortable road I’d rather not walk if I don’t have to. If I DO have to, then I’ll have a lot of time to write, and I’m pretty sure i wouldn’t be sparing of the names and details 🙂

  7. How deliciously ironic. From all the wisdom above, I gather that no alien without papers may ever be taught gun safety, or to handle a firearm. Maybe Gauleiter Holder might be willing to put on some “stings” to find and prosecute violations.

    Certainly, any sort of Gunwalker-type op will be in violation of ITAR, right?

    • Now THAT would be fun to watch. If the next prez is a R with some serious balls of steel, prosecute all those involved with F&F for ITAR violations, including conspiracy. I’d have to go long popcorn futures if that starts happening.

  8. Hey Joe,

    Some Calgunners claiming familiarity with ITAR from their business dealings are claiming it may not be quite that bad. One pointed to section 120.10 (5) which exempts the information types in 120.11 (basically generally publicly available info) and although it doesn’t explicitly mention blog postings or YouTube videos, I am guessing they would be covered under any reasonable interpretation of that language.

    Regulations:
    http://www.pmddtc.state.gov/regulati…R_Part_120.pdf

    Calguns thread:
    http://www.calguns.net/calgunforum/showthread.php?t=866021

    • Yes. I read the Calgun thread after all the hits started coming in from there. Thank you.

      I wonder if there could be problems with the process information becoming “generally publicly available”. Aren’t the 3-D printer files of guns now “generally publicly available”? Yet ITAR is being used to suppress them.

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