Exports with military uses are subject to either Department of Commerce Export Administration Regulations (EAR - for products with civilian or military uses) or Department of State International Traffic in Arms Regulations (ITAR - for products that only have military uses). ITAR rules are more demanding than EAR rules. Space satellites are covered by the more rigorous ITAR.
The National Academies Press reports on a recent workshop on the problems that have been created by the application of ITAR to space satellites: Space Science and the International Traffic in Arms Regulations:Summary of a Workshop (2008).
Here are some extracts:
Exports that can be used for military purposes are regulated under one of two systems:
The United States seeks to protect its security and foreign-policy interests, in part, by actively controlling the export of goods, technologies, and services that are or may be useful for military development in other nations. “Export” is defined not simply as the sending abroad of hardware but also as the communication of related technology and know-how to foreigners in the United States and overseas. The U.S. government mechanism for controlling dual-use items—items in commerce that have potential military use—is the Export Administration Regulations (EAR) administered by the Department of Commerce; items defined in law as defense articles fall under the jurisdiction of the Department of State and the International Traffic in Arms Regulations (ITAR). Because of the potential military implications of the export of defense articles, the ITAR regime imposes much greater burdens (on both the applicant and the government) than does the EAR regime during the process of applying for, and implementing the provisions of, licenses and technical-assistance agreements.
Satellite exports are currently governed by ITAR:
Until the early 1990s export control activity related to all space satellites (commercial and scientific) was handled under ITAR. Between 1992 and 1996 the George H.W. Bush and the Clinton administrations transferred jurisdiction over the licensing of civilian communications satellites to the Commerce Department under EAR. In 1999, however, in response to broad concerns about Chinese attempts to acquire U.S. high technology, the U.S. House of Representatives convened the Select Committee on U.S. National Security and Military/Commercial Concerns with the People’s Republic of China, also known as the Cox Committee. One of the many consequences of the Cox Committee’s report was Congress’s mandate that jurisdiction over export and licensing of satellites and related equipment and services, irrespective of military utility, be transferred from the Department of Commerce to the State Department and that such equipment and services be covered as defense articles under ITAR. Scientific satellites were explicitly included despite their use for decades in peaceful internationally conducted cooperative scientific research.
But scientist's argue that ITAR's rigor is disroportionate to the risk:
The space science community acknowledges the sensitivity of much hardware and technology related to space activity, but they also argue that controlling “everything that flies in space” casts too broad a net. The current administration has actually recognized the mismatch between the ITAR control regime and the low levels of risk inherent in the bulk of international space science activity.
White House efforts to address the mismatch between ITAR and the security threat have so far created new problems:
A variety of White House policy statements have been made and regulatory adjustments tried over the years, but the unfortunate net result of such changes has been the introduction of ambiguity and uncertainty. As a result, and because the criminal sanctions for failure to comply with ITAR are personal and great, university officials and researchers tend to err on the side of conservatism in seeking licenses and thus impose on themselves financial, administrative, and time-delay burdens that might not even be necessary....
Meanwhile U.S. space research and development - which depend on cross-fertilization with foreign researchers - are being hobbled, and reducing our competitive advantage:
Science, perhaps more than most fields of endeavor, depends on a full and open discussion and exchange of ideas among researchers who are addressing a given problem. If researchers are constrained by security classification or proprietary interests, communication is necessarily limited. Because most of the results of space science research are placed in the public domain, most space research activity qualifies as “fundamental research,” which is excluded from ITAR controls as long as the research is conducted by “accredited institutions of higher learning.” However, the bulk of government-sponsored fundamental space research at universities is conducted by consortia, including government research laboratories and private companies, and ITAR requires licensing when persons from other countries are involved—and they usually are. Since the dawn of the space age, other nations have invested in developing their own capabilities and have thereby made themselves desirable partners of the United States. Furthermore, many space-based scientific efforts focus on the science of Earth, and so international collaboration is necessary if global perspectives are to be drawn. The costs and delays imposed by ITAR processing requirements, coupled with other nations’ reluctance to be made subject to restrictions derived from U.S. law and regulations, are making the United States less and less desirable as a partner to its foreign collaborators. The implications for continued international collaboration are grave.
Expanding on that:
...Participants noted that advances in space science benefit substantially from the diversity and expertise of foreign researchers at universities and national laboratories and from academe’s open environment for the exchange of information. However, ITAR requirements pose obstacles for international participation in research at U.S. institutions. An important side effect of the obstacles is that international interest is diverted away from the United States as a research partner to alternative foreign providers, such as China, Russia, and India. [Are Chinese and Russian security measures really less strict than those in the U.S. - Ben] The experiences of other space agencies (such as the European Space Agency and the Japan Aerospace Exploration Agency) in dealing with the United States on ITAR have led to concerns abroad over collaboration with the United States and have stimulated policies that encourage foreign industry to avoid collaboration and to become autonomous in space projects to avoid the burdens imposed by ITAR....
Participants argued that the current ITAR regime, contrary to the intent of export-control regulations, serves as a detriment to U.S. national interests in at least two ways. First, there is a “reverse brain drain” effect in which talented U.S.-trained scientists and engineers are avoiding what they perceive as an overregulated U.S. science market. Scientific and technical professionals are reluctant to become engaged in space research, because they find the effort to deal with ITAR frustrating or even insurmountable. Second, the administrative burden, cost, and unpredictable delays leading to loss of contracts to international competitors adversely affect the entrepreneurial small-business base of U.S. third-tier suppliers that are important elements of the U.S. aerospace industry. During the workshop, some participants noted that ITAR is having a serious effect on foreign cooperation with U.S. scientists, especially because of lack of clarity in the regulations, inconsistency in their application, and delays associated with approval of TAAs. Those problems are expected to worsen as projects, such as the James Webb Space Telescope and the Mars Surface Lander, become more ambitious and complex. International participants in the workshop went so far as to speculate that without high-level U.S. government relief on ITAR, the development of highly integrated infrastructure programs, such as those envisioned for human space exploration, will be impossible.
Are our own students getting the best education possible?
According to workshop participants, the same uncertainties are leading some professors to “dumb down” course content rather than risk ITAR violations by discussing their research in the classroom setting. Although they believe that the vitality of education in the U.S. university system depends on its links to state-of-the-art research, many cite fears of breaking the law inadvertently.
At least for a while, don't look for fundamental changes in law or regulations - that's just not politically possible. But incremental change may take place:
...Over the next year or so, the State Department is committed to incremental improvements in efficiency and to better communication with the space community to clarify and harmonize key definitions and concepts where confusion exists. Similarly, members of the university community are committed to participating actively in that communication to make their actions more effective and to document their problems with ITAR to facilitate favorable change....
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