Defense Trade Advisory Group (DTAG)

Definition of Public Domain

Plenary SessionNovember 9, 2011

Working Group Members

• Jerald Beiter, Booz Allen Hamilton, Inc. • Dennis Burnett, EADS North America• Ginger Carney, Network Centric Operations Industry Consortium• D. Michael Cormaney, Luks Cormaney LLP• Andrea Dynes, General Dynamics• Lawrence Fink, Science Applications International Corp. • Charles Graves, Day and Zimmerman• Jahna Hartwig, Johns Hopkins University Applied Physics Laboratory• Greg Hill, DRS Technologies, Inc. • David Isenberg, Acting Director, Norwegian Initiative On Small Arms• David Kelly, Bluefin Robotics• Christine McGinn, Cobham Corporate North America • Terrell Otis, Otis & Associates• Janet Rishel, Textron, Inc. • Deborah Shaffer, Southwest Research Institute• Thomas White, Lockheed Martin

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State Department Tasking

• Develop a definition of “information in the public domain” that:– precludes multiple or overlapping controls– adds clarity– limits misinterpretation or misuse, and – supports enforcement and prosecution

• Ultimate objective – single definition for both ITAR & EAR

Tests for New Definition

• Does not capture information that is proprietary or otherwise subject to U.S. law

• Includes information that has lawfully been made available & accessible to the public without restrictions upon its further dissemination through the proper channels

• Takes into account the availability of information on the Internet

• Clearly articulates the types of data that would be considered in the public domain

• Cites examples of the types of data that would not be considered public domain

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Summary – DDTC Proposed Definition

• “Information in the public domain” includes:– Information approved for public release by cognizant USG agency – “Information that does not contain technical data and is published and

generally accessible or available to the public through lawful unlimited distribution, without restrictions upon its further dissemination”

– Information on the internet, provided owner approved release & release was “lawful”

• Not in public domain:– information identified as technical data – technology that is subject to the EAR– business proprietary information– operation or maintenance manuals that provide information on the

development, production or employment of a defense article

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Scope of DTAG Review

• Detailed comparison of EAR & ITAR definitions & concepts

• Definitions from other laws/regulations, including:– DoE, DHS, NRC, DoD, Labor, – Foreign export control laws/regulations – IP law (copyrights/patents/trademarks)– FOIA & related court decisions– Espionage law – Executive Orders classifying information for national security – DoD directives on disclosure/public release

• Constitutional limitations & application of prior restraint/1st Amendment cases

• Previous DTAG work on “fundamental research”

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DTAG Proposed Definition

120.11 INFORMATION IN THE PUBLIC DOMAIN

a) For purposes of this subchapter, “information in the public domain” means:1) Information that is generally accessible or available to the

public, by any means; or

2) Information that is a product of “fundamental research” (see §120.XX), except information described in paragraph (c)(1) below.

Notes:1. Copyright restrictions do not remove information from public domain2. Provides numerous examples of sources for public domain information3. Addresses whether information on the Internet is in the public domain

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DTAG Proposed Definition (Continued)

b) Export controlled information is lawfully placed in the public domain if it is:

1) Technical Data (as defined in §120.10) approved for public release (i.e., unlimited distribution without restrictions upon its further dissemination) in any form (e.g., not necessarily in published form) by the cognizant U.S. Government department or agency unless delegated otherwise.

Technical data that has been approved for public release is considered to be “information in the public domain” when the requisite approval is issued, regardless of whether the technical data is actually published or made generally accessible or available to the public; or

2) Information other than technical data (see §120.10) that is made generally accessible or available to the public, provided that:

i. The person or persons making such technical data generally accessible or available to the public has or have exclusive ownership rights for such technical data;

ii. No other person has legal rights in the use or dissemination of such technical data (e.g., U.S. Government contractual data rights); and

iii. The act of making such technical data generally accessible or available to the public is not subject to restriction under any U.S. laws, regulations (not including the requirements of this subchapter) or Executive Orders enacted or imposed for national security reasons.

Note: Unless (b)(1) applies, public release of technical data is an export

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DTAG Proposed Definition (Continued)

c) “Information in the public domain” does not include the following:

1) Research, including “fundamental research” (see §120.XX), that results in information restricted in any manner for any reason, with the exception of temporary restrictions to review for editorial purposes. Examples of such reviews include those which ensure that the publication would not inadvertently divulge proprietary or classified information provided by the project sponsor to the researchers, or compromise patent rights. Information described in this paragraph includes the results of research funded, directly or indirectly, by the U.S. Government that are subject to specific access and dissemination controls.

2) Technical embellishment, enhancement, explanation or interpretation of information in the public domain that is not itself in the public domain.

d) For purposes of this section, “information” includes software as defined in §121.8(f).

Note: Research inputs may still require export licensing

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DTAG Proposal – Change to Defense Service

(a)(1) The furnishing of assistance (including training) using other than information in the public domain (see §120.11) to foreign persons . . .

Notwithstanding §120.11(a), furnishing assistance to foreign persons using information that a person knows or has reason to know has not been approved or authorized for public release by the cognizant U.S. Government department or agency (see §120.11(b)) constitutes a defense service under this part.

Notes:1. Define knowledge (including “reason to know”)2. Provide examples of what might constitute “knowledge”

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DTAG Proposal – New Section

§120.XX FUNDAMENTAL RESEARCH

Fundamental research means basic and applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community. Fundamental research does not include industrial development, design, production or product utilization. “Basic research” means experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective. “Applied research” means the effort that normally follows basic research, but may not be severable from the related basic research. “Applied research” attempts to determine and exploit the potential of scientific discoveries or improvements in technology, materials, processes, methods, devices, or techniques, and attempts to advance the state of the art.

Note clarifies that inputs may be subject to licensing controls

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Discussion Points

• Purpose of definition• Interaction with proposed change to “defense

service” definition • Imposing a knowledge standard to control use of

improperly released information • Publication under the EAR vs. ITAR • Separate definition for “fundamental research” • “Public Domain” vs. “Publicly Available”

Purpose of Definition

• Two primary options discussed:– Factual concept of public availability – Regulatory classification of information

• DTAG recommendation: Definition needs to reflect the increasing availability of information– Once information is released, it is available to the public – regardless

of whether it was released properly or even “lawfully”– Futility in asserting regulatory controls over actions other than:

• Initial improper release/publication (i.e., exports) • “Knowing” use of improperly released information

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Interaction with Defense Service

• Proposed change to “defense service”:– “The furnishing of assistance (including training) using other than

public domain data to foreign persons . . .”

• DDTC proposed definition of “public domain”– Change above necessitates a very narrow definition of public domain– Generally excludes information not “lawfully” released

• No details on meaning of “lawfully” • Chilling effect: How can third party determine “lawfulness”?

– Driven by need to maintain controls over providing assistance using “unlawfully” released information

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Interaction with Defense Service (Continued)

• DTAG recommendation:– Maintain “public domain” definition as generally available to the

public – regardless of how information released • Provide methods by which technical data may be lawfully released • Clarify that release by other than prescribed methods is an export

– Modify “defense service” definition to include providing assistance using information that you know was not properly placed in the public domain

• Raises issues that may require further review (e.g., interaction with “export” & “technical data”)

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Knowledge Standard

• DTAG Recommendation: No person should be held responsible for using/exporting improperly released information unless the person knows such information was improperly released– “Knowledge” definition imported from EAR– Knowledge can be inferred from information itself (e.g., markings) or

surrounding circumstances – Notes provide clarification & examples

• Implement in “defense service” definition (not “public domain”)

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Publication – ITAR vs. EAR

• Public release of controlled information – ITAR: Public release of technical data is an export subject to licensing– EAR: Public release of your own controlled technology is not an export –

no licensing controls

• Concepts must be reconciled for a single definition• DTAG recommendation:

– USG cognizant agency approval remains sole path for obtaining approval for public release of technical data• Implementing EAR principle for technical data was discussed/rejected • Issue: Constitutionality of such controls in certain scientific/academic

contexts – Maintains EAR publication principle for information subject to export

controls (other than technical data)

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Fundamental Research

• DTAG recommendation: Create separate definition– “Fundamental research” (FR) is a separate concept not exclusively

related to “public domain” – Reiterates previous DTAG recommendation

• Proposed changes:– Results of FR are public domain unless restricted for any reason –

Limited pre-publication review allowed– Clarify that inputs used in FR may be subject to licensing controls

• Results also may be subject to licensing controls if such results incorporate/are contaminated by technical data

– FR no longer defined based on where it occurs (e.g., colleges, private companies, non-profit labs)

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Publicly Available

• Recommend “publicly available” instead of “public domain” – Wassenaar and MTCR both use the term “public domain” but define it

more closely to “publicly available “– More accurately reflects the concept of information that is generally

accessible or available to the public – Concept of “public domain” from copyright law not necessarily

relevant for export control purposes • A work is in the “public domain” if it is no longer under copyright

protection or if it failed to meet the requirements for copyright protection

• Not all publicly available information is public domain• Not all public domain information is publicly available

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Final Comments

• Definition of public domain must reflect the reality of information available to the public

• Links between core definitions make it very difficult to change one without affecting others – Technical data, public domain, export & defense service all linked – Changes have cascading & complicated effects

• Address defense service issue in definition of “defense service” – not in “public domain”

• Conflicting ITAR & EAR concepts of publication must be reconciled for a single definition

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Defense Trade Advisory Group (DTAG)

Definition of Public Domain

Questions?

Text of Regulation vs. Notes

• The few courts that have interpreted §120.11 have done so narrowly– Stressed difference between regulatory provision & “colloquial”

definition of public domain – Changes in technology necessitate a certain degree of flexibility – want

to avoid Internet problem in future

• Consensus: – Definition should reflect concepts & maintain some flexibility – Use “notes” to provide clarifications

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Miscellaneous

• Software can be in the public domain – Must satisfy same tests as other information – Consistent with EAR & multilateral regimes

• Information posted on official USG websites and that is available to the general public should be presumed to be public domain unless specifically marked to the contrary

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