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Should information found on the internet be considered to be in the "public domain" for the purposes of ITAR compliance?

Joe Valentine, MBA, PMP joeevalentine@gmail.com (919) 923 4280 120.11 Public Domain Public domain means information which is published and which is generally accessible or available to the public: (7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. Government department or agency (see also 125.4(b)(13) of this subchapter); 120.10 Technical Data This definition does not include ....... information in the public domain as defined in 120.11. In the Consent Agreement dated January 23, 2009 signed by Analytical Methods, Inc. with the Dept. of State, among other things it states that the Respondent acknowledges and accepts that the furnishing of defense services to foreign persons is subject to the ITAR even when no technical data is involved. e.g. all the information relied upon in furnishing defense services to a foreign government or foreign person is in the public domain. The 1976 Copyright Act defines publication as follows: Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to among other things distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending........... Therefore only the copyright owner or his authorized agent can publish their work and make it available to the public. If someone else has made it available to the public, it does not meet the definition of publication and does not satisfy the exclusion for published material under the ITAR. The question that arises is how would one verify this and assumptions cannot be made. If anyone has posted technical data in the public domain without obtaining a license that would be likely to be a violation. If another person republishes the data, that may amount to another violation due to reexport of technical data without a license or prior approval. The fact that it was found on the internet would not be an excuse and ignorance of law is not a mitigating factor. Further State has held in previous cases that furnishing of defense services to foreign persons is subject to the ITAR even when no technical data is involved. Hence the availability of the data in public domain may not be used as a shelter in all cases. Further the right to publish is not an absolute right. Reasonable restrictions can be placed and there are exceptions. Subclause 7 of 120.11 talks of the need for approval by the cognizant U.S. Government department or agency for public release of data in the public domain. All these facts and applicable law need to be kept in mind while examining the facts and circumstances applicable to any particular case and so the answer would generally be, "It depends on the facts and circumstances applicable to a particular case." In case of doubt, always seek competent legal advice. March 18, 2013