Szoka on ITAR Reform

I admit it, I hung out last weekend thinking about everything and anything but International Traffic in Arms Regulations (ITAR).

But I've made up for my slacking off: Just replayed the audio of
The Space Show from Sunday, which featured Berin M. Szoka, executive director of the Institute for Space Law & Policy, who returned to the program for an excellent talk about ITAR, including the history of the regime and his ideas for reform.

(By the way, with all the renowned members of the legal profession who show up as guests on The Space Show, Dr. Livingston better watch out or a rumor will spread that he likes lawyers. ;)

Here's Berin Szoka's
bio for the show.

And some quick notes from the broadcast:

First Berin expressed his respect for Ann Ganzer and her staff at the Department of State. (Ann was a
guest of Dr. Livingston's on Feb. 12) saying it is important to understand that she is doing her job under a mandate from Congress.

Making it a personal issue does a disservice to ITAR reform. We need to change the policy, not the people. One of the big problems with ITAR is Ms. Ganzer and her agency are understaffed. [Note: Ann would agree; she commented on this problem in her talk on the program last month.--JL] We should be pushing not only for policy change, but for tools and resources.

Voices in the new and old space community are united that something needs to be done; but beyond that, it's not clear what we are pushing for. It's not clear from the perspective of a Congressional staffer. We are way behind in making our case about why the ITAR regarding space technologies should be changed and how. Berin is working on this at the Institute for Space Law & Policy.

Berin does not give legal advice on ITAR. It is such a complicated set of regs; if you need professional ITAR help Berin knows names of attorneys who are experts.

This discussion for the most part about ITAR as applied to space technologies, which "in the grand scheme of things are a very small part" of ITAR. When we complain about the ITAR, we mean the regime that applies to space. In general, the ITAR is not about space. We need to be careful about not attacking ITAR. The ITAR serves really important functions that have nothing to do with space issues.

Also, it is not fruitful to get into partisan politics that might have led us to where we are today; important to talk about substance.

Regarding arguments for changing ITAR: The economic argument is not a good argument when the trade-off is some degree is harm to national security. You are never going to convince people that avoiding harm to your business justifies some degree of harm to national security.

American national security when it comes to space tech depends on US technological leadership in space. Berin's metric for success of ITAR is a regime that maintains US technological leadership in space.

Two ways for US to do this: Stop other people from developing technologies. Or, increase your development of technologies and therefore your lead. ITAR has to do both. But right now we go too far in focusing on control and not far enough in making sure American companies lead the world in space technologies.

We must make sure US researchers, small companies, big companies, entrepreneurs can develop in this country and do not to have to leave to compete on the world market. That's the main argument.

Also compelling is the argument that in limiting US companies and driving other countries to go into space on their own and not cooperate with us, we are making a choice as a civilization as to what values and which countries will lead in developing space into the future.

The metric is US technological superiority. Space is now and is increasingly becoming critical to the US military. This is a weakness and a great strength. The military is increasingly protective of its space assets.

What do suborbital space tourism companies have to do with the military? These companies are lowering the cost of space access and developing RLV's and the things that will make us leaders in space. If we drive these people and companies offshore we will ultimately harm our national security by being overly restrictive today.
The best thing we could have as a nation would be cheap, easy access to space; and this would benefit the military.

We want to make sure the ITAR process works in a way that makes entrepreneurs succeed.

As a nation we have never made a decision on controlling space technology as weapons. What happened in 1998 is greatly misunderstood; it had very little to do with satellites and everything to do with ballistic missiles.

[Berin recaps ITAR history: from export controls going back to the Cold War when the
CoCom was very successful in denying the Soviets access to sensitive Western technology, to ITAR as it exists now which has been around since 1976 when the Arms Export Control Act (AECA) passed; including the Commercial Space Launch Act (1984); the controversy arising from the launch of US commercial sats on Chinese launch vehicles; discussion of dual use; Loral and Hughes; 1998, where we are today. Good backgrounder. The real concern was about ballistic missiles and their ability to hit the US.]

Export controls are restraints on any transfer of controlled technical data to non US persons. This may include not just selling a final product but hiring a foreigner, bringing a foreigner into your plant, advertising, speaking at a conference, distributing or disseminating data. You need to go through the State Department.

The difference about space is the fact ITAR controls things being developed by small companies. But ITAR is designed with big prime contractors in mind. Big companies like Boeing and Lockheed have internal compliance organizations that are bigger that the entire staff of a new space company.

We need to find ways of making ITAR work better for everyone, especially small businesses. Give State more resources, staff, funding for e-filing, funding for customer support process.

Our NATO allies all have export controls; we are all part of the
Wassenaar Arrangement. But Congress thinks other countries' controls are not tight enough. We are the only country in the world that treats space technology as weapons. In every other country they are dual use items.

Berin discusses munitions list categories that apply to space; suggests treating these things differently.

ITAR has devastated the US share of the launch industry market, satellite manufacturing market; made things very difficult for small space companies; has had a catastrophic affect on university space research, US participation in global exchange.

Ideas for reform: We need an ITAR that works for America; an ITAR that is, in general, fast, clear, simple and easy, that makes distinctions between hostile and friendly countries, and is easy for small businesses to comply with.

For space technologies, we need to make distinctions as to the specific categories; we need an approach that does not control technologies that are available outside the US and especially those that are both available outside and superior. Example: the Russians were simply better at some things, like automated rendevous.

We want to make sure the ITAR does not control public domain information in a way that stifles free exchange of ideas.

Berin fleshes out these ideas. Good, thoughtful work. My notes cut off here, but that's OK, you can
listen to the whole MP3.

Congress should listen to Berin Szoka, too.

* * *

By the way, Berin says to help with ITAR reform or for more information, please contact him at the Institute.

He also invites us to the
International Space Development Conference (ISDC 2006) May 4-7, at the Sheraton Gateway Hotel in Los Angeles. Lots happening there.

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