The Impact of the International Traffic in. Arms Regulations

The export of space “technology” has always been constrained by the fear that it may compromise American national security or the economic competitiveness of US firms.1 As we saw in chapter 3, National Security Advisory Memorandum NSAM294 (on ballistic missile/rocket technology) and NSAM338 (on comsats) issued by the Johnson administration in the 1960s were intended to impede undesirable knowledge flows. Fears of technology transfer, and the need to con­trol it, hovered over the debate on European participation in the post-Apollo pro­gram, and on the sharing of rocket technology with Japan and India, described elsewhere in this book (chapters 4-6, 10, 12).

Historically NASA has favored a fairly generous policy on technology trans­fer. The key pillars of the policies put in place by Frutkin in the early 1960s—no exchange of funds, and clean interfaces—shaped the structure of international collaboration and deftly helped NASA kick-start programs all over the world without undermining national security or economic competitiveness. However, as other friendly space-faring nations matured, and as their potential contribu­tions to NASA’s program increased, the agency had to navigate between the pressure to deepen scientific and technological collaboration, and the objections of those who wanted more formal restrictions on the sharing of hardware and knowledge. The conflicts emerged with particular intensity in the early 1970s with Western Europe, and with Japan and India in the 1980s. By the 1990s NASA realized that it would have to formalize and streamline its export control system to cope with new international and domestic realities, notably a major scare over the People’s Republic of China’s appropriation of American weap­ons and space-related technologies. The more stringent implementation of the International Traffic in Arms Regulations (ITAR) after 2000, and the onerous fines, including imprisonment, imposed for their violation caused some concern to people both in the United States and abroad. Preserving national security across a vast domain of dual-use technologies against the pressure from research and business who favor putting high walls around well-defined sensitive areas involves complex trade-offs and is a topic of ongoing interagency consultation.

Two arms of the executive branch, the Department of Commerce and the State Department, deal with most space-related export controls.2 The former administers the Export Administration Regulations (EAR), which pertain to “dual-use” commodities, software, and technology, that is, items that have pre­dominantly commercial uses but that can also have military applications and that are to be found on the Commerce Control List (CCL). The Directorate of Defense Trade Controls (DDTC) in the State Department (the Office of Munitions Control in the early 1970s) administers the ITAR. The ITAR are intended to curb the proliferation of sensitive technologies and weapons of mass destruction by preventing the circulation of defense articles and defense services. Defense articles are listed on the US Munitions List (USML).

The USML was described in a brief by Alvin Bass (of NASA’s Office of General Counsel) as “a broad enumeration of articles which are considered as having direct or indirect military potential or applicability.” When Bass was writing, in 1970, he noted that the list covered almost everything that NASA was concerned with, including

[s]pacecraft, including manned and unmanned active and passive satellites, spacecraft engines, power supplies, energy sources, launching, arresting and recovery equipment, inertial guidance systems, and all components, parts and accessories of the above-mentioned items. Other categories [Bass went on] include propellants, missile and space vehicle powerplants, launch vehicles, rockets, control devices for any of the above, [various items] designed or modi­fied for spacecraft or space flight, pressure suits, protective garments. . . space vehicle guidance, control and stabilization systems, and the list continues.3

Bass did not enumerate the defense services that could only be supplied if per­mission was granted. Today defense services are defined as including “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.”4

The term “export” is misleading (as is the phrase “technology transfer”) if one wants to understand the scope of the control regime. These terms create the impression that only commodities are regulated. But authorization is also required (in a Technical Assistance Agreement, or TAA) to export technical data (as distinct from “purely theoretical scientific data,” which was treated more leniently). The meaning of the term “export” is correspondingly expanded. To quote Finarelli and Alexander, under ITAR, to export was defined in 2008 as “[a]ny oral, written, electronic, or visual disclosure, shipment, transfer, or trans­mission outside the United States to anyone, including a U. S. citizen, of any commodity, technology (information, technical data, or assistance), or software, or codes.”5 A second clause restricts even the “intent” to make exports of this kind to “a non-U. S.-entity or person wherever located,” that is, in the United States or abroad, and a third specifically controls any transfer to a foreign embassy or affiliate. Thus when US entities seek to transfer US technology abroad, they are triggering a process that manages not simply the “export” of commodities or “articles,” but that regulates the flow of related data and knowledge, where knowledge is inscribed in many different forms, from the statement and the image to the hardware, and transmission occurs through many different chan­nels, from the spoken word and the visual display, to shipment.

The Arms Export Control Act of 1976, often wrongfully attributed as being the genesis of ITAR, confirmed that the range of space technologies designated by Bass were indeed to be treated as defense articles, and that data exchanged regarding them was a defense service. That granted, it could always be argued by a US entity that specific items did not fall under the ITAR, and should be treated as dual-use technologies to be regulated by the less-restrictive EAR. In the case of the EAR, but not the ITAR, the decision over whether or not to grant an export license takes account of commercial factors, and above all whether or not the client could acquire the item from a foreign source if an American company did not provide it. In practice it is often found that many applications under the EAR do not need an export license, though the item must be evaluated before the determination is made and justifying documentation must be provided.

The reach of the legislation that embodies the control regime is negotiated and renegotiated between arms of the administration that have different and some­times conflicting mission-objectives. They take account of input and pressure from various stakeholders in space, notably firms interested in expanding their markets, who seek to have their items regulated by the more relaxed EAR on the grounds that they are dual-use commodities, not essentially instruments of war, but also scientists and engineers involved in international projects. Social actors who have to implement the legislation can face stiff penalties—fines, imprison­ment, loss of further government contracts—for not respecting its requirements and, in case of ambiguity, spontaneously retreat to a conservative interpretation of the law to protect themselves.