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
[email protected] 229 3399

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