User Post

3:48 am

March 24, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 1 0 Post edited 6:12 am – March 24, 2010 by Luke Maurits

One of CSTART's current high priorities is to take steps twoard becoming a legal entity of some kind, like a non-profit organisation. This would let us open a bank account in the name of CSTART, have property be owned by CSTART, have people enter into contracts with CSTART, etc. All of these are things we will have to do eventually. CSTART's community has kindly provided us with a sizeable proportion of the money we need to do this, but before we can do it we need to decide where to incorporate ourselves. The US seems like an obvious choice: many of our active members are in the US, many of our future community members are likely to be from the US, and so too are many of our future financial supporters, who would appreciate their donations being tax deductable. The big obstacle to incorporating in the US is something called ITAR. ITAR stands for International Trade in Arms Regulations, and basically it is the law which stops US citizens from doing things like selling military secrets to China. More precisely, it makes it illegal for any US citizen or US company to export anything on a list called the US Munitions List to any non-US citizen or company, unless they apply for a license from the government to do so (licenses are expensive!). ITAR doesn't just apply to physical objects (ready made hand grenades), it also applies to detailed technical knowledge about those objects (like blueprints for a hand grenade). "Export" doesn't just mean putting a physical product in a box and shipping it overseas, it means giving a physical product to a non-US citizen even if on US soil, and it also means communicating technical knowledge to non-US citizens by talking to them, or putting the knowledge on, say, a web server that can be accessed by non-US citizens (you can see where this is going). This is relevant to CSTART because a lot of things we want to design and/or build are on the US Munitions List, including rockets (because of their obvious military application), and a lot of space travel related technology, like high precision navigation and guidance technology (which can be used to aim ICBMs at cities with precision), or heat shielding (which can keep the warhead of an ICBM intact as it falls back to Earth). On the face of it, this seems to make running an open source space agency in the US completely impossible. However, the truth is not so clear cut. For one thing, there are lots of exceptions to ITAR which might work in our favour. There is also the fact that ITAR is an extremely vague law and can't possibly be enforced to the letter, so there is perhaps some wiggle room. Some people have expressed concern that we have already violated ITAR and our US members are now technically criminal arms dealers (personally, I doubt this). Some people have suggested that ITAR has no bearing at all on open source internet engineeing (personally, I doubt this too). The truth is probably somewhere in between. It's a very important issue for CSTART to reliably figure out how big of a problem ITAR is for our plans, and what we want to do about it. Incorporating outside the US is a possibility, but only a partial solution. This would absolve CSTART, the legal entity, of any ITAR responsibilities, but US citizens contributing to CSTART would still be ITAR-bound. This could scare away lots of potential contributors. It also means that a large proportion of the internet could not make tax free deductions. It may complicate using SpaceX launch vehicles (this would require importing physical items on the US Munitions List into the US, which is also covered by ITAR). The CSTART community needs to invest time and effort in researching these matters: to what extent does ITAR apply to us, and how do the pros and cons of incorporating outside the US weigh up: does it do more harm than good? This thread should be used for people to make contributions to this community discussion. Post any exceptions, loopholes or other parts of the ITAR law that you think can help us keep CSTART's operations inside the law, post links you can find to ITAR case studies that seem relevant to us. If you have legal qualifications or experience, let us know your thoughts on the matter. If you are a US citizen, let us know how CSTART incorporating outside of the US might affect the likelihood of you contributing to CSTART. The sooner we can come to a clear and informed conclusion on this matter, the sooner we can move on to the actual process of incorporating and getting on with our mission! A note to "old time CSTARTers": I know we have discussed all this more than once before. However, these discussions are scattered all over the place, and have not been very well researched or justified. This thread is an attempt to get all the data and thoughts into one place and make sure we have understood them correctly: i.e. to tread the issue seriously and get it dealt with. If you've said something on this topic before which you think is appropriate to this thread, please don't hesitate to copy and paste. Further reading: Further reading: The exact wording of ITAR (pdf)

The exact wording of an old, out of date version of ITAR (html) – included because the pdf above can't be searched, whereas this can. It's old, but some parts have the same wording, so the ability to search this version is still useful. Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

4:15 am

March 24, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 2 0 Post edited 4:16 am – March 24, 2010 by Luke Maurits

An important point to be aware of with regards to technical data: Technical data is defined in §120.10, where it clearly says: This definition does not include information concerning

general scientific, mathematical or engineering principles commonly taught

in schools, colleges and universities or information in the public domain

as defined in §120.11. It also does not include basic marketing information

on function or purpose or general system descriptions of defense articles. I would argue that all of the work CSTART has done so far falls into this category. We have really only use general scientific, mathematical and engineering principles to investigate the basics of our projects: how much propellant is required, flight times, etc. Thus I do not think we have violated ITAR yet. Now, the exception to information in the public domain is very worth taking note of. This is defined as folllows: Public domain means information which is published and

which is generally accessible or available to the public: (1) Through sales at newsstands and bookstores; (2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published

information; (3) Through second class mailing privileges granted by

the U.S. Government; (4) At libraries open to the public or from which the public

can obtain documents; (5) Through patents available at any patent office; (6) Through unlimited distribution at a conference, meeting,

seminar, trade show or exhibition, generally accessible to the public, in

the United States; (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); (8) Through fundamental research in science and engineering

at accredited institutions of higher learning in the U.S. where the resulting

information is ordinarily published and shared broadly in the scientific

community. Fundamental research is defined to mean basic and applied research

in science and engineering where the resulting information is ordinarily

published and shared broadly within the scientific community, as distinguished

from research the results of which are restricted for proprietary reasons

or specific U.S. Government access and dissemination controls. University

research will not be considered fundamental research if: (i) The University or its researchers accept other restrictions

on publication of scientific and technical information resulting from the

project or activity, or (ii) The research is funded by the U.S. Government and

specific access and dissemination controls protecting information resulting

from the research are applicable. Does this mean: We can largely side step ITAR by making maximal use of ideas and technology which are already described in library books, etc? This includes a huge amount of information, including just about everything NASA has ever done.

That where we come up with new ideas and technology not currently in the public domain, we can distribute that material at public US conferences (like SpaceUp) and the have, via (6) above, that information considered public domain and hence ITAR exempt? Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

4:22 am

March 24, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 3 0 An important note on lots of space technology (you can only see this in the 2009 version of the law, not the 1997 version): Within Category XV (Spacecraft Systems and Associated Equipment), there is a part which says: This coverage by the United States Munitions List does not [emphasis mine] include the following unless explicitly designed or modified for military application and then lists a number of useful things related to space-rated communication, solar power and data storage. So it seems to me that these items are completely ITAR exempt? Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

5:53 am

March 24, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 4 0 Here is a brief bit of writing by a law firm on the topic of when something is considered "public domain" for the purposes of ITAR. It talks specifically about part (7) of the public domain definition. It basically seems to emphasise that just sticking something on the internet isn't good enough to invoke part (7), you really do need "approval by the cognizant U.S. government department or agency" (I have not been able to figure out how to know that the cognizant department or agency is for any given subject). Note that there is no reference to approval by the government in part (6). I think it is important to figure out what "published" means in this context. For all parts except part (7) (which says "not necessarily in published form"), technical data must be published (by virtue of "Public domain means information which is published and"). This could be a stumbling block on us invoking part (6). Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

7:28 am

March 24, 2010

brmj Rochester, New York, United States Member posts 402 5 0 I detect a chicken-and-the-egg problem with the public domain defense, because something is necessarily not in the public domain when you first do something to put it in the public domain, and without such a defence, disseminating the sort of information that might involve could very well be a breach of ITAR. Do I have some fundamental misunderstanding of how it works, or is this analysis basically correct? Also, thank you so much for doing this. I'll try to add to your information latter today, but for now I have a class to be at in half an hour that I ought to get ready for. Main work groups: Propulsion (booster), Spacecraft Engineering, Computer Systems, Navigation and Guidance (software)

7:37 am

March 24, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 6 0 brmj said: I detect a chicken-and-the-egg problem with the public domain defense, because something is necessarily not in the public domain when you first do something to put it in the public domain, and without such a defence, disseminating the sort of information that might involve could very well be a breach of ITAR. Do I have some fundamental misunderstanding of how it works, or is this analysis basically correct? This does seem like a logically valid analysis to me, but we are, of course, dealing with the law and not logic. If the law respected your common sense approach to this, why would those public domain stipulations be in there? Maybe there is a reason, I dunno. It's something we need to look into. Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

7:51 am

March 24, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 7 0 Post edited 7:56 am – March 24, 2010 by Luke Maurits

On the applicability of ITAR to the OHKLA project: Item (a) in category IV of the US Munitions List is "Rockets", so it definitely seems like ITAR has the scope to affect the OHKLA project, which is all about a rocket. However, the term "rocket" is incredibly vague. Surely nobody really thinks ITAR applies to the lowest class of model rockets made for hobbyists. What does "rocket" mean, exactly? §121.2 of ITAR is titled "Interpretations of the U.S. Munitions List and the Missile Technology Control Regime Annex" and "explain and amplify the terms used in § 121.1", which is exactly what we want to figure out exactly what "rocket" means, for ITAR purposes. The only stuff in the interpretations section which refers to rockets is §121.16, "Missile Technology Control Regime Annex". The definition of "rocket" given here is restricted only to those devices "capable of delivering at least a 500 kg payload to a range of at least 300 km". If this is what "rocket" means in ITAR, then OHKLA is 100% unaffected by ITAR, because it has capacities far, far below that benchmark. This would be great news. However, I am hesitant to jump to this conclusion. §121.16 is not worded the same way other interpretation sections are. Other sections are very clear. E.g: Vessels of war means vessels, waterborne or submersible, designed, modified, or equipped for military purposes, including vessels described as developmental, "demilitarized" or decommissioned. Vessels of war in Category VI, whether developmental, "demilitarized" and/or decommissioned or not, include, but are not limited to, the following: (a) Combatant vessels. (1) Warships (including nuclear-powered versions): (i) Aircraft carriers. (ii) Battleships. (iii) Cruisers. (iv) Destroyers. (v) Frigates. (vi) Submarines. (the list continues, btw, if you're interested). This is very clear: "X means Y. Here are some examples: A, B, C". The section that includes the defintion of rocket involving payload mass and ranges is not worded in this nice clear way at all. It begins with: Some of the items on the Missile Technology Control Regime Annex are controlled by both the Department of Commerce on the Commodity Control List and by the Department of State on the United States Munitions List. To the extent an article is on the United States Munitions List, a reference appears in parentheses listing the U.S. Munitions List category in which it appears. The following items constitute all items on the Missile Technology Control Regime Annex which are covered by the U.S. Munitions List: I am not sure if it is trying to say that the definition of "rocket" for ITAR purposes is the same as the definition of "rocket" for the purposes of this other law, the Missile Technology Control Regime Annex, (in which case, OHKLA is 100% okay and we can celebrate), or if it just trying to draw attention to the fact that some of things covered by ITAR are also covered by MTCRA (i.e. the "interpretations" section of the document is over at this point and this is just something tacked on the end). I am particularly uneasy about the part "The following items constitute all items on the Missile Technology Control Regime Annex which are covered by the U.S. Munitions List". This suggests that there may be items which are on the USML (and hence covered by ITAR) but not on the MTCRA, and these items might include rockets which don't meet MTCRA's definition. Basically, it is very confusing and unclear to me what "rocket" means for the purposes of ITAR, but it looks like it is possible it means rockets which can carry 500 kg or stuff 300 km, and if that is what it means, then the OHKLA project has nothing to fear. Let's hope we can confirm that this is what it means. EDIT: Very relevant, Item (a) in category IV of the USML is, in full, "Rockets (including but not limited to meteorological

and other sounding rockets)". I don't think many meteorological rockets can carry 500 kg 300 km. So this biases me to think that that definition is not the only kind of rocket ITAR applies to. But if this is the case…hobby rockets are covered by ITAR? That's absurd. Are they excluded from ITAR by virtue of the Public Domain exceptions? Or the general science exceptions? Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

3:30 pm

March 24, 2010

antinode Member posts 64 8 0 Post edited 4:21 pm – March 24, 2010 by antinode

It's worth noting that all of this has recently gone under an in depth review, with plans to announce reform by April. This means that all of this will very likely change in the next few days. The reform is intended to promote trade and eliminate unnecessary obstacles, so hopefully this will solve all of the ITAR issues. If anyone can find out exactly when this will be announced, please let us know. EDIT: See Obama's speech on this topic from March 11th: Text and video.

5:58 pm

March 24, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 9 0 antinode said: It's worth noting that all of this has recently gone under an in depth review, with plans to announce reform by April. This means that all of this will very likely change in the next few days. The reform is intended to promote trade and eliminate unnecessary obstacles, so hopefully this will solve all of the ITAR issues. If anyone can find out exactly when this will be announced, please let us know. EDIT: See Obama's speech on this topic from March 11th: Text and video. This is great news, and we should definitely wait until these reforms are described in more detail before making a hard and fast decision on anything related to ITAR. I will try not to get too excited, though, as the SpaceNews.com article makes it sound like the main reform on the space front will be related to satellites. This is great news for the CubeSat project, but it may not make a difference to ITAR's impact on OHKLA and CLLARE. Hopefully it will, though. That would be excellent. Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

9:31 pm

March 26, 2010

Rocket-To-The-Moon Altus, Oklahoma, USA Member posts 685 10 0 Ultimately we would need the full review of a lawyer to tell us the intricacies of ITAR. Short of doing that I think that our current understanding is sufficient to make some decisions. Correct me if I am wrong, but if we incorporate outside of the US then CSTART itself won't be subject to ITAR, but members inside the US will still be under the law and their participation will be punishable (if so prosecuted). Since a large majority of the members and the funding will come from the US I think that it probably makes sense to incorporate in the US. If all of our design work is done from public domain sources then we should be good to go. Any original research work would have to be undertaken by groups offline and then published in online summaries that lack technical details. I think that the tax benefit to our donors is worth incorporating in the US. Main Workgroups: Propulsion & Spacecraft Engineering

10:30 pm

March 26, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 11 0 Rocket-To-The-Moon said: Ultimately we would need the full review of a lawyer to tell us the intricacies of ITAR. Short of doing that I think that our current understanding is sufficient to make some decisions. Correct me if I am wrong, but if we incorporate outside of the US then CSTART itself won't be subject to ITAR, but members inside the US will still be under the law and their participation will be punishable (if so prosecuted). Since a large majority of the members and the funding will come from the US I think that it probably makes sense to incorporate in the US. If all of our design work is done from public domain sources then we should be good to go. Any original research work would have to be undertaken by groups offline and then published in online summaries that lack technical details. I think that the tax benefit to our donors is worth incorporating in the US. I am inclined to agree with pretty much everything in here. Incorporating outside the US is a fairly poor solution to the ITAR problem because individual US contributors to CSTART are actually worse off, and we lose tax benefits for our largest expected source of donors. Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

6:57 am

March 27, 2010

heawill Toronto, ON Member posts 7 12 0 I'm not sure that operating outside of the US does protect you from ITAR. When I googled it initially after reading this thread there were a number of news articles about the US not giving the UK an exemption from ITAR or something along those lines, and Canada being subjected to some of the rules of ITAR, as well. Specifically the article I found imposed ITAR rules about employee hiring that's illegal in Canada, I think. Anyway, I'm just about to head out so I can't find it for you, but I'll post some of the links later.

12:16 am

March 28, 2010

brmj Rochester, New York, United States Member posts 402 13 0 My understanding is that Canada has its own ITAR-like law(s). What incorperating in a nation without something like ITAR does is, in my understanding, prevent CSTART from being held liable for ITAR breaches because ITAR wouldn't apply to the organization. Individual members in the US and Canada would still be able to be charged for ITAR breaches, however. Main work groups: Propulsion (booster), Spacecraft Engineering, Computer Systems, Navigation and Guidance (software)

6:15 pm

March 28, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 14 0 brmj said: What incorperating in a nation without something like ITAR does is, in my understanding, prevent CSTART from being held liable for ITAR breaches because ITAR wouldn't apply to the organization. Individual members in the US and Canada would still be able to be charged for ITAR breaches, however. This is my understanding. Heawill, with regards to exemptions, I think the idea there is to relax the laws so that US citizens and US companies (these, afterall, are the only entities ITAR can apply to – the US government has no authority over anybody else) can export ITAR-controlled stuff to and import ITAR-controlled stuff from citizens and companies of other countries. So making the UK ITAR exempt would mean someone in the US could email technical documents of a rocket to someone in the UK without breaking the law. A lot of countries who cooperate with the US on military projects have pushed for these kind of exemptions, to drastically cut down on the bureaucratic overhead involved, but as far as I know the US has never agreed to it. Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

11:03 pm

April 2, 2010

Luke Maurits Adelaide, Australia Admin posts 1483 15 0 So, would I be correct in thinking that most people remain in favour of a US incorporation, based on our analysis of ITAR above? Another link to add to the pile: this page has (under the section "Export Regulations") a short list of people who have violated ITAR, claimed in court that ITAR was a restriction of their First Amendment right to free speech, and been successful in doing so. Both cases are related to crypotgraphy, not rocketry or space technology, so perhaps the relevance to us is slim, but it shows that ITAR can in principle be contested. Also, the wording of the ruling in these cases seems to be very clear in suggesting that any source code, regardless of subject matter, cannot be controlled under ITAR: the computer source code is an

expressive means for the exchange of information and ideas about

computer programming . . . it is protected by the First

Amendment. That's pretty black and white. It should apply equally well to, e.g., source code for navigation systems. Main CLLARE workgroups: Mission Planning, Navigation and Guidance. I do maths, physics, C, Python and Java.

2:08 am

April 3, 2010

rpulkrabek Member posts 348 16 0 With what we know at the moment, incorperating in the U.S. makes the most sense, to me. I still think, however, we should wait until we hear what the new changes will be with ITAR, which happen soon (sometime this month??).

6:31 am

April 3, 2010

Rocket-To-The-Moon Altus, Oklahoma, USA Member posts 685 17 0 I still have $283.51 sitting in my PayPal acount. I would really like to get that money used for its intended purpose. Main Workgroups: Propulsion & Spacecraft Engineering