Constitutionality of Proposed Revisions of the Export Administration Regulations

• Court: Department of Justice Office of Legal Counsel
• Decided: July 28, 1981
• Status: Published

Opinion

Constitutionality of Proposed Revisions of the Export Administration Regulations

Proposed revisions of the Export Administration Regulations dealing with the export of technical data to foreign nationals apply a prior restraint, in the form of a licensing requirement, to a wide variety o f speech protected by the First Amendment. There is thus a considerable likelihood that in their current form the regulations would be invalidated as unconstitutionally overbroad. T he regulations would also be vulnerable to constitutional attack on grounds of vagueness. If the regulations were cast not as a licensing scheme but as a form o f subsequent punishment, they could cover a far broader range o f conduct. A licensing system is likely to be held constitutional only if it applies narrowly to exports which are likely to produce grave harm under the test set forth in New York Times Co. v. United Stales, 403, U.S. 713 (1971).

July 28, 1981 M EM ORANDUM O PIN IO N FO R T H E DIRECTOR, C A P IT A L GOODS PR O D U C T IO N M A TERIA LS DIVISION, D E PA R TM EN T O F CO M M ERCE

This will respond to your request for the views of this Office on the constitutional issues raised by your draft revision of Part 379 of the Export Administration Regulations. Those regulations clarify the cir­ cumstances in which a license is required for the export of technical data to foreign nationals. W e believe that the regulations, as currently drafted, have a number o f unconstitutional applications, and that they should therefore be substantially revised in order to meet the constitu­ tional objections. In the discussion below, we offer a general statement of our reasoning, together with some suggestions for possible revision.

I. Background

T he general purpose of the regulations is to require a license before the “export” of “technical data,” subject to tw o exceptions discussed below. U nder the regulations, technical data is defined as “information and know-how o f any kind that can be used, or adapted for use, in the design, production, manufacture, repair, overhaul, processing, engineer­ ing, development, operation, maintenance, or reconstruction of com­ modities.” The term “commodity” encompasses a wide range of articles com piled on the Commodities Control List. Many of the articles fall generally in the broad category of “high technology” items, including,

230 but not limited to, items subject to direct use for military purposes. However, the definition of commodities also embraces items with only indirect military application. An “export” is defined as an actual ship­ ment or transmission of technical data out of the United States; any release of technical data in the United States with knowledge or intent that the data will be shipped or transmitted from the United States to a foreign country; and any release of technical data of United States origin in a foreign country. Under the regulations, a critical distinction is made between “basic research”—research “directed toward ah increase in knowledge”—and “applied research”—research “directed toward the practical application of knowledge.” In addition, “development” is defined as the systematic use of knowledge directed toward the design and production o f useful prototypes, materials, devices, systems, methods, or processes. The regulations grant a general license for two broad categories of technical data. The first category provides a general license applicable to all destinations and includes three subcategories, of which the first consists of data “made generally available to the public” through re­ lease at conferences that are open to the public in the sense that the general public or a range of qualified participants is eligible to attend. This license appears designed to cover conferences in which the infor­ mation will not be closely held because of the generally open nature of the proceedings. The second subcategory consists of exports resulting from “basic [scientific] research,” but “applied research” is specifically excluded from this license. The third consists of data “released through formalized classroom instruction . . . at commercial, academic, govern­ ment or private institutions,” provided that the instruction does not give access to applied research or development activities. The second broad category provides a general license to a limited number of countries for two subcategories of technical data. The first consists of data in such forms as manuals or instruction books, provided that they are sent as part of a transaction directly related to commod­ ities licensed for export and that they are not directly related to the production of commodities wholly or in part. The second subcategory includes technical data supporting a bid, lease, or offer to sell. For all other exports of technical data, a license is required. II. Discussion The Export Administration Regulations represent an effort to serve the legitimate interests of the United States in controlling the dissemina­ tion of information to foreign countries, especially when the result of such dissemination may be the development of military equipment. The courts, however, have been almost invariably' unwilling to uphold li­ censing schemes that require government approval before particular information may be disclosed. Such schemes amount to “prior re­

231 straints,” which are presumed invalid and subject to an exceptional burden o f justification. See New York Times Co. v. United States, 403 U.S. 713 (1971). The courts have never held that the technical and scientific materials involved here—which, to be sure, do not contain political speech—are entitled to less than full protection under the First Amendment. In order to ensure that the regulations at issue here will survive judicial scrutiny under the First Amendment, we believe that it will be necessary to revise them and thus to guarantee that the legiti­ mate interests that they attem pt to promote will in fact be served if the regulations are challenged in court. In a recent memorandum, this Office commented on the constitu­ tional issues raised by a revision of the “technical data” provisions of the International Traffic in Arms Regulations (ITAR). See Memoran­ dum Opinion of July 1, 1981, from Theodore B. Olson, Assistant A ttorney General, Office of Legal Counsel, for the Office of Munitions Control, Department of State.0 In that memorandum, we divided the technical data provisions of the IT A R into three general categories, applying a separate First Amendment analysis to each. The first cate­ gory included transactions involving arrangements entered into by ex­ porters to assist foreign enterprises in the acquisition or use of technol­ ogy. Follow ing the decision in United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978), we concluded that technical data exported during the course of such transactions fell into the same general cate­ gory as communications made during the course of a criminal conspir­ acy. The courts treat such communications not as speech protected from prior restraint, but as an integral part o f conduct that the govern­ m ent has a right to prevent. See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978), and cases cited. We concluded, therefore, that technical data transmitted during the course o f such transactions could constitutionally be subjected to a licensing requirement. The second category consisted o f technical data divulged for the purpose o f promoting o r proposing the sale o f technical data or items on the munitions list. W e concluded that this form of “commercial speech” would probably not be held subject to the prior restraint doctrine in light of the low er level o f protection sometimes accorded to that speech and the substantial government interests at stake. See Central Hudson Gas & Elec. v. Public Service Com m ’n, 447 U.S. 557 (1980). The third category consisted of technical data disseminated by an exporter who is unconnected with any foreign enterprise, but who knows o r has reason to know that the data may be taken abroad and used there in the manufacture or use of arms. Speech in this category, we concluded, would generally be protected from prior restraint. The

0 Note: T he July 1, 1981, Memorandum Opinion is reprinted in this volume, at p. 206, supra. Ed.

232 Court has made clear that the First Amendment protects the right o f Americans to communicate with foreigners, even if the foreigners are citizens of adversaries of the United States. See Lamont v. Postmaster General, 381 U.S. 301 (1965); see also Kleindienst v. Mandel, 408 U.S. 753 (1972).1 The Court has also made clear that a prior restraint can be imposed only in the most compelling circumstances. See New York Times Co. v. United States, 403 U.S. 713 (1971). In the absence of such circumstances—such as a grave and immediate threat to national secu­ rity, as where important military information is being communicated to an adversary for current use against the United States—speech falling in this category is protected from prior restraint. See id. We believe that this general framework is the proper one from which to analyze the restrictions at issue here. Applying that framework, it is apparent that the revised regulations apply a prior restraint, in the form of a licensing requirement, to a wide variety o f protected speech falling in the third category described in our memorandum on the ITAR. F o r example, scientists and researchers must obtain a license for exports o f technical data resulting from applied research. The results of such research are, however, entitled to full protection under the First Amendment. Similarly, the regulations subject university instruction to a licensing requirement if the instruction includes applied research o r development activities. This requirement applies a prior restraint to protected speech and is thus impermissible except in the most compel­ ling circumstances. For example, we do not believe that the courts would uphold a requirement that a professor obtain a license before “releasing” information to foreign students simply because the informa­ tion may be used in the overhaul of certain kinds of computer chips. The same considerations suggest that an American scientist could not be barred in advance from informing his colleagues, some o f whom are foreign nationals, of the results of an experiment that could help produce some other high technology item. Other examples could read­ ily be imagined. In more general terms, the regulations cover a wide variety of speech that is constitutionally protected. We believe that they should therefore be substantially narrowed. Indeed, the range o f impermissible applications is sufficiently great, and the number of per­ missible applications so comparatively small, that there is a considerable likelihood that in their currrent form the regulations would be invali­ dated as substantially overbroad under Broaderick v. Oklahoma, 413 U.S. 601 (1973). We note in addition that the regulations are vulnerable to claims o f vagueness in two critical respects. First, the distinction between “ap­ plied research” and “basic research” seems to be too thin to support the

‘The Court has apparently not authoritatively determined whether and to what extent Americans have First Amendment rights while travelling abroad. See Haig v Agee, 453 U.S. 280 (1981) (assuming such rights arguendo).

233 conclusion that “applied research” can in all contexts be subjected to the licensing requirement. Second, the definition of an export as a “release o f technical data . . . with knowledge or intent that the data will be . . . transmitted from the United States to a foreign country” is highly ambiguous. In order to be subject to the licensing requirement, must the speaker know w ith a high degree o f certainty that the data will be so transmitted? O r, as we have been told informally, is it sufficient if he knows that foreign nationals are among his audience? If the first interpretation is adopted, the regulations will of course be substantially more narrow. W hile we are not at this stage prepared to describe in detail what materials may, consistent w ith the First Amendment, be covered by the regulations, we would like to conclude with some general observations. First, the legal difficulties in this context arise largely because of the profound constitutional hostility to prior restraints. If the regulations w ere cast, not as a licensing scheme, but as a form of subsequent punishment, they could cover a far broader range of conduct. Under Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the government may punish speech that is both “ directed to inciting or producing imminent lawless action” and “likely to . . . produce such action” (footnote omitted). Similar considerations may justify subsequent punishment for the export of technical data in circumstances in which the exporter knows or intends that the result will likely be harmful to the national security interests of the United States. In order to implement such a scheme of subsequent punishment, persons planning to “export” might be given an opportunity, but not required, to seek advice from the Secretary o f Commerce as to whether the particular disclosure is pro­ hibited by law. Second, if a licensing system is to be retained, the constitutional prohibition against prior restraint suggests that it may be applied only to exports that are very likely to produce grave harm. See New York Times Co. v. United States, supra. Under this rationale it may be permis­ sible to require a license before a person may disclose (with the requi­ site scienter) technical data having direct military applications to an adversary of the United States. Apart from this limited category, we believe that the prior restraint doctrine bars a licensing requirement. As noted above, these comments are directed to the current version o f your regulations. We will be pleased to provide further comments or assistance with respect to any future revisions.

T heodore B. O l s o n Assistant Attorney General Office o f Legal Counsel