CJ Determination: Open Source Satellite Work is Free of ITAR

CJ Determination: Open Source Satellite Work is Free of ITAR

The United States Department of State has ruled favorably on Open Research Institute’s commodity jurisdiction request, finding that specified “Information and Software for a Digital Microwave Broadband Communications System for Space and Terrestrial Amateur Radio Use” is definitely not subject to State Department jurisdiction under ITAR, the International Traffic in Arms Regulations. This is an important step toward reducing the burden of regulations restricting international cooperation on amateur satellite projects, which have impeded engineering work by amateurs in the United States for decades.

Export regulations divide both technical information and actual hardware into three categories. The most heavily restricted technologies fall under ITAR, which is administered by the State Department. Technologies subject to more routine restrictions fall under EAR, the Export Administration Regulations, administered by the Department of Commerce. Technologies that are not subject to either set of regulations are not restricted for export.

On 20 February 2020, Open Research Institute (ORI) filed a Commodity Jurisdiction (CJ) Request with the US State Department, seeking to establish that key technologies for amateur radio are not subject to State Department jurisdiction. “Information and Software for a Digital Microwave Broadband Communications System for Space and Terrestrial Amateur Radio Use” was assigned the case number CJ0003120. On 11 August 2020, the case received a successful final determination: the technology is not subject to State Department jurisdiction. This is the best possible outcome of a CJ request.

The Final Determination letter can be found at
https://www.openresearch.institute/wp-content/uploads/2020/08/CJ-0003120-Final-Determination-Letter.pdf

Under this determination, the technologies are subject to the EAR. The next step is to submit a classification request to the Commerce Department. ORI anticipates that the Commerce Department will find that these technologies are unrestricted under the carve-out for open source in the EAR.

Open Research Institute (ORI) is a non-profit research and development organization which provides all of its work to the general public under the principles of Open Source and Open Access to Research.

This work was accomplished by a team of dedicated and competent open source volunteers. The effort was initiated by Bruce Perens K6BP and lead by Michelle Thompson W5NYV.

Open Research Institute developed the ideas behind the Commodity Jurisdiction request, hired Thomsen and Burke LLP (https://t-b.com/) for expert legal advice, organized the revisions of the document, and invited organizations and individuals with amateur satellite service interests to join or support the request.

ORI thanks Libre Space Foundation and Dr. Daniel Estevez for providing their subject matter expertise and written testimony, and JAMSAT for helpful encouragement and support.

The legal costs were fully reimbursed with a generous grant from Amateur Radio Digital Communications (ARDC). See https://www.ampr.org/grants/grant-open-research-institute/.

ARDC and ORI share a vision of clearly establishing open source as the best and safest way to accomplish technical volunteer work in amateur radio. This final determination letter provides solid support for that vision. The determination enables the development of implementation guidelines that will allow free international collaboration.

This clears the path for a number of interesting projects facilitating new methods for terrestrial and satellite communications, opening the door to robust global digital amateur communications.

Questions and inquiries to ori at open research dot institute.

Open Research Institute ITAR/EAR policy work – 2019 Update

Open Research Institute has a significant update to our ongoing amateur radio satellite communications policy work. This letter describes the work and includes a request for assistance.

The International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) are two United States export control laws that affect the manufacturing, sales and distribution of technology.

Open Research Institute (ORI) operates using the public domain carve-outs in ITAR and EAR.

Our current policy is documented on our website. Here’s the direct links:
https://openresearch.institute/itar-and-ear-strategy/ and https://openresearch.institute/developer-and-participant-policies/

We believe these policies are sufficient.

However,

1) Some potential funding sources want to see a formal legal opinion.

2) Some organizations have made allegations that everything we do is illegal (and unethical, fattening, stupid, etc.).

Our choices were to continue insisting we are right, or to be effective.

I chose to be effective.

Therefore, in July 2019 Bruce Perens went out and found several law firms that were aligned with our goals and values. We selected one recommended by the Electronic Frontier Foundation and began work.

After the first round of conversation in August 2019, we had decided to 1) pay for a formal legal opinion and 2) apply for EAR certification with the US Department of Commerce. This would certify that the open source work we were doing was A-ok with the US government.

There was a delay in beginning this work. I stepped up to lead the effort and initiated another round of conversation with the law firm.

This second round of conversation refined the goal.

My highest priority is ensuring risk reduction to our amazing volunteers. The open source and public domain carve outs deliver enormous risk reduction and offer wonderful international opportunities for meaningful collaboration. But, just like with proprietary ITAR/EAR work, you have to know what you’re doing in order to unlock all the benefits.

A formal legal opinion was still desired and will be obtained. That has not changed. But, instead of going for EAR Certification, which we considered to be an easier application process, we decided we would go for the top tier, and apply for ITAR Commodity Jurisdiction from the US Department of State.

If successful, then this finding solves EAR certification and also better defines a relationship with the Department of Defense, which is the third major entity involved in regulating the amateur radio satellite work we are doing. A Commodity Jurisdiction is widely considered to be the gold standard for work related to ITAR.

ORI is asking that our programs of work be found explicitly *not* subject to ITAR.

This application is appropriately lengthy and complex. This effort is not without risk. Instead of just continuing to happily do what we’ve been doing, which we believe to be entirely legal and above-board, we are instead deliberately attracting attention, scrutiny, and judgement.

Why do this? Because others have not. The trinity of fear-uncertainty-doubt must be confronted and defeated. Open source is the way forward for amateur radio satellite work.

The cover letter from the law firm has been delivered to us. This cover letter contains the draft of the source material for the application. We also have a copy of ITAR Category XV (Spacecraft and Related Articles), DDTC CJ Determinations list (to study the list of successful applications) and a copy of the Commerce Control List.

We will review and if necessary revise the cover letter, until it accurately and completely represents our work. Then we will prepare our application and then we will file it.

Let’s talk about expenses. In August, we estimated the effort would cost $50,000. Current estimates, to get us up to the point of being able to apply, are much less than that at $5,000. I can pay for this.

ORI currently has $13,041 in the bank. These funds are intended for hardware development and boards, and not for legal. If the expenses end up exceeding my ability to pay, then I will ask for help. ORI hardware funds will not be diverted to cover legal costs.

What do we need?

There is a section in the application where supporting organizations can contribute supportive comments.

I ask all AMSAT organizations to seriously consider providing a statement of strong support for Open Research Institute’s Commodity Jurisdiction request. Describing the work that would be enabled by safe, sane, and legal legal open source collaboration would be of great benefit to this application.

I humbly ask ARRL, ARISS, Libre Space Foundation, and any other group that has an interest in this work to consider formally supporting this effort with a statement that can be included with the request.

Our law firm can provide some guidance on statements if necessary. We deeply appreciate any assistance provided.

Thank you all for the support, encouragement, comment, critique, questions, and motivation.

-Michelle Thompson W5NYV
w5nyv@arrl.net 858 229 3399