May 9, 2008
The Directorate of Defense Trade Controls ("DDTC") recently issued guidance to an exporter of defense articles that military photos downloaded from the Internet are not automatically in the public domain as defined by ITAR 120.11. Therefore, information or photos that meet the definition of “technical data” under the International Traffic in Arms Regulations (“ITAR”) 120.10 (22 C.F.R. 122.10) may still be subject to export controls under the ITAR even though they are freely available on the Internet.
It is important for exporters to recognize that “public domain” is a defined term under the ITAR. It is used to determine when otherwise controlled technical data (as defined in ITAR 120.10) is no longer controlled as such because it is in the public domain. Under ITAR 120.11, public domain is not defined to include any information that is accessible by the public. It is defined to include information accessible or available to the public in one of eight enumerated ways. The most likely authority for public domain status for government official photos is ITAR 120.11(a)(7) (public releases in any form). That provision requires approval by the cognizant U.S. government agency before technical data that has been publicly released is considered to be in the public domain for purposes of the ITAR.
The photos that led to the DDTC guidance included government official photos of military aircraft, including the F-117 stealth fighter and the B-2 stealth bomber, that were downloaded from a well-known public web site. The web site states that some of the photos are in the public domain because they are “work of an U.S. Air Force Airman or employee, taken or made during the course of the person’s official duties” or the “work of the United States Federal Government under the terms of Title 17, Chapter 1, Section 105 of the US Code.” The photos may be in the public domain in a broader sense of the word, but not as defined by the ITAR. It is also important to note that the act of placing such photos in the public domain without appropriate authorization may violate government laws or regulations, including the ITAR, which does not protect the act of placing technical data in the public domain even if transferring it once it is there is lawful. As for the second statement, 17 U.S.C. Sec. 105 on its face only provides that the federal government cannot obtain copyright protection for official photos. It does not state that publishing of photos taken by military personnel while on official duty is authorized.
Accordingly, exporters should not assume that material that may reveal technical data is no longer subject to the ITAR notwithstanding unofficial statements indicating that such materials are in the public domain merely because such material has been posted on the Internet. On the other hand, not all government or military photos of defense articles will reveal technical data. Where there is doubt as to whether information found online may constitute technical data it may be necessary to submit a commodity jurisdiction determination to DDTC or obtain permission from the cognizant agency before exporting such materials or using them in marketing materials that will be widely distributed.
Gibson, Dunn & Crutcher lawyers have experience in evaluating these issues and are able to advise our clients concerning them. Please contact the Gibson Dunn attorney with whom you work, or Jim Slear (202-955-8578, firstname.lastname@example.org), Judith A. Lee (202-887-3591, email@example.com) or Karen L. Manos (202-955-8536, firstname.lastname@example.org) in the firm’s Washington, D.C. office.
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