US Export Controls to be Revised

It was about a year ago that I reported that Firefox had obtained a “No Violation” letter from the US government, allowing it to continue distributing source code that included cryptographic routines without risking prosecution for violating US technology export controls.  In that post, I discussed some of the sometimes perverse consequences of the controls, particularly the International Traffic in Arms Regulations [ITAR], and alluded to the somewhat confused, and confusing, state of the rules.

So I was glad to see, in an article in the “Law and Disorder” blog at Ars Technica, that the White House has announced a new initiative to reform the export control regime, following on a review of the existing system ordered last August by President Obama.

The review determined that the current export control system is overly complicated, contains too many redundancies, and, in trying to protect too much, diminishes our ability to focus our efforts on the most critical national security priorities:

The existing system is anything but nimble, being based on  two different, uncoordinated control lists administered by three different Cabinet departments: Defense, Commerce, and State.  Enforcement of the regulations is similarly scattered across several agencies.  The result is that virtually identical products may be treated differently, depending on what they are called.  Quoting from the White House announcement:

Examples include brake pads for the M1A1 tank. These brake pads are virtually identical to brake pads for fire trucks but the tank brake pads require a license to be exported to any country around the world, while the fire truck brake pads can be exported to virtually all countries without a license. Still, under our current system, we devote the same resources to protecting the brake pad as we do to protecting the M1A1 tank itself.

This really is ridiculous; it is very hard to believe that there could be any especially sensitive technology involved in tank brake pads, even if they were not the same as those used for fire trucks.

The new initiative will not produce a single list of controlled items, at least at first, but the two revised lists will be constructed using the same categories, in a manner that will facilitate moving to a single list sometime in the future.  The new lists will have three levels of control:

  • Items of critical military or intelligence value, available almost exclusively from the US; or weapons o mass destruction.
  • Items of significant military or intelligence value, available almost exclusively from US allies or partners.
  • Items of significant military or intelligence value that are broadly available.

The idea is that items in the top level will almost always require an export license.  Items in the second level may be exported to allies or partners under generalized authorizations.  Items in the third level will probably not be restricted, except for the enforcement of specific sanctions programs (e.g., to Iran).

The preliminary results are encouraging: it appears that about one-third of the items on the existing lists might be freed of controls, and only a relatively few items would fall in the top, most restricted category. If this revision is carried out effectively, it should be a big help to US technology exporters, and might even increase our security, by focusing attention on what’s really important.

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